Why the UN Convention on the Law of the Sea is Dangerously Out of Date
I did not embark on my legal career 20 years ago with the goal to draft an international treaty to protect the Arctic Ocean. But at the urging of my friend Parvati, the Founder and CEO of the Parvati Foundation, that’s exactly what I did. The Marine Arctic Peace Sanctuary (MAPS) Treaty safeguards our planet’s air conditioner, the Arctic Ocean, and helps alleviate suffering worldwide. Hunger, water shortages, natural disasters and mass migration are all factors in violent conflict and are all exacerbated by damage to the Arctic Ocean ecosystem. MAPS mitigates these risk factors by declaring the entire Arctic Ocean north of the Arctic Circle a marine protected area.
Before I wrote the MAPS Treaty, which is an addendum to the United Nations Convention on the Law of the Sea (Law of the Sea), I researched the historical context for the Law of the Sea negotiations. I wanted to understand the issues that nation states were trying to resolve with this new international governance structure for the oceans. I learned that after the Second World War, states were vying for dominance of the oceans. There had long been debate as to whether the sea is international territory (the concept of freedom of the seas), or whether it can be claimed by individual states (the concept of closed sea). Countries desired “a legal order for the seas and oceans” that would “contribute to the realization of a just and equitable international economic order.”
After nine years of lengthy and complex negotiations, the Law of the Sea was finally adopted in 1982. At that time, the dire consequences of Arctic sea ice melting were not being considered. The final text includes only one provision specific to the Arctic Ocean: Article 234. This article authorizes coastal states to develop and administer special regulations for ice-covered waters within their exclusive economic zones, “where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance.”
Scientists only began in 1979 to measure the levels of permanent Arctic sea ice. By 1982, the alarm had not yet sounded on its rapid decline. Article 234 shows us that in the early 1980s, the primary concern was how to protect ecologically sensitive local coastlines from pollution and shipping accidents caused by a preponderance of ice, not how to protect the Earth and humanity as whole from the dire global repercussions of a lack of ice.
Unfortunately, according to the Annual Arctic Report Card by the National Oceanic and Atmospheric Administration in the US, the oldest and thickest ice in the Arctic Ocean has now vanished by a stunning 95percent. With today’s knowledge that Arctic sea ice is essential for our healthy global climate system and is melting quickly, the provisions in the Law of the Sea allowing for exploitative activities in the vulnerable Arctic Ocean must no longer stand. For the sake of all life, the international community must act with utmost urgency to protect the Arctic Ocean, because a threat to the Arctic Ocean threatens the health and safety of all life.
But the problem is, international agreements typically take years to negotiate and implement. For example, though the Law of the Sea was adopted in 1982, it only came into force in 1994 (when Guyana became the 60th nation to ratify the treaty)—twenty-one years after negotiations commenced in 1973. Back in 2002, discussions started around protecting biodiversity in the high seas. It took until 2018 before UN member states finally entered into formal Biodiversity Beyond National Jurisdiction (BBNJ) treaty negotiations—which are slated to take two years.
Meanwhile, aside from the BBNJ negotiations, no formal protection for the Arctic Ocean has even been on the horizon at the UN. If anything, it’s been the contrary. Although the United Nations since 2007 has repeatedly affirmed “its deep concern over the vulnerability of the environment and the fragile ecosystems of the polar regions, including the Arctic Ocean and the Arctic ice cap, particularly affected by the projected adverse effects of climate change,” its Specialized Agency the International Maritime Organization is actively encouraging commercial shipping through icy Arctic waters.
Protracted negotiations are a luxury for which our world no longer has time. The ice is melting far too fast, and exploitative interests including commercial fishing, shipping and oil and gas, are moving to take advantage even faster. The MAPS Treaty is the most practical and expeditious response. Because the Treaty has already been drafted, it obviates the need for time-consuming debates. World leaders of UN member states are simply invited to sign it today without any modification.
I was initially hesitant to draft an international treaty. Today, however, I recognize that the MAPS Treaty is the only hope of protecting the vulnerable Arctic Ocean ecosystem from exploitation at the speed required to protect our world. I am deeply grateful to have been given the opportunity to create a legal instrument that serves the collective good, making what has always been a natural sanctuary into an official one.
Vandana Erin Ryder is the General Counsel and Communications Manager for Parvati Foundation, and author of the MAPS Treaty. Her extensive legal career includes a major Canadian law firm, the Law Society of British Columbia, and the British Columbia Ministry of the Attorney General.