Entitlement to marine living resources in areas beyond national jurisdiction

Entitlement to living resources involves three particular questions: Entitlement to what; who determines entitlement; and what process is used to determine entitlement. This paper is mainly concerned with the latter issue and, in particular, the role that property has to play in determining entitlements to natural resources. As regards the first question, this paper is essentially focused upon the marine living resources of the high seas and the marine genetic resources of the deep seabed, although it is also relevant to consider the living resources of Antarctica. The question of who determines entitlement is a little more complicated, and requires, initially, a slight clarification. The label ‘areas beyond national jurisdiction’ (ABNJ) is perhaps misleading, for it is always, at least theoretically speaking, possible to regulate activities according to the nationality principle, whereby the acts of legal persons or things, such as ships, are governed by the law of the State of which they are nationals. However, as I will discuss in more detail below, the regulation of resources is more effective and commercially viable when exclusive access and use rights are obtained, and are not readily supported through the exercise of mere personal jurisdiction. So, for present purposes, what we are really speaking about is areas beyond exclusive territorial sovereignty. This observation is important because it brings into focus the point that the question of who determines entitlement is fundamentally a question of international law. This means that answer to the above question is that States determine entitlement, at least initially. The more controversial issue is which States – all States, through the generation of rules of general international law, or groups of States, through regional mechanisms? Finally, there is the question of how entitlements are allocated. This is by far the most difficult issue, and one that is bound up with the question of who determines entitlement. As anyone with an understanding of the development of the law of the sea will appreciate, the traditional approach to matters of allocation has been to extend jurisdiction or sovereign rights to coastal States who then proceed to decide more specific allocations of resources to individuals under domestic law. The continental shelf and exclusive economic zone (EEZ) are cases in point. This may suggest a rather simple approach to the question of entitlement, through the continued extension of exclusive (spatial) coastal State control over resources. However, the creeping jurisdiction of States in this way seems to be an unlikely prospect, destroying as it would the carefully negotiating settlement to be found in the United Nations Convention on the Law of the Sea 1982. As such it is more useful to consider how international law addresses questions of entitlement, other than through the allocation of competence to States. The purpose of this paper is to consider this question through the lens of property rights, which are increasingly prevalent as a means of regulating marine resources within domestic legal system