What If the United Nations Convention on the Law of the Sea had Entered into Force Unamended: Business as Usual or Dystopia?

Abstract

The United Nations Convention on the Law of the Sea (Convention) was adopted in 1982 and entered into force in 1994 and is generally considered to be a success story. That success in part it attributed to the adaptation of the mining regime for the deep seabed contained in Part XI of the Convention prior to its entry into force. The chapter considers whether the law of the sea might have development differently in the absence of such adaptation, looking at two scenarios: ‘business as usual’ and ‘dystopia’. After sketching these scenarios, the chapter further assesses the likelihood of a number of the elements they have in common. In concluding, it is observed that the law of the sea might have developed differently had states failed to reach an agreement on the adjustment of Part XI of the Convention prior to its entry into force. The conclusion also consider the question whether the Convention, which was adopted after more than ten years of complex negotiations, actually was ‘too big to fail’. It is submitted that the Convention would not have failed by design. However, the analysis of the counterfactuals suggests that the consultations on Part XI might have been stalled, and developments might have slowly eroded the basis for a compromise. Still, it is unlikely that this would have resulted in a radically different law of the sea regime, but there likely would have been more conflicting claims, leading to less effective cooperation and higher transaction costs.