KINGSTON, R.I. – January 7, 2019 – The international governance of marine areas beyond national jurisdictions is an issue of growing importance as temperatures increase, sea levels rise, islands become submerged, and artificial islands are constructed. As territorial boundaries change, conflicts are arising that no one envisioned in the 1970s and 80s when the United Nations Convention on the Law of the Sea was negotiated.
It’s a complex subject to which Elizabeth Mendenhall is paying close attention. The assistant professor of marine affairs and political science at the University of Rhode Island said that the United States could play a crucial role in how the Law of the Sea is interpreted under changing circumstances. But the U.S. is one of very few nations in the world that has not ratified the agreement, and it does not appear likely to do so any time soon.
“The Law of the Sea is a big agreement that still prevails as the legal framework for managing the ocean, but at the time it was negotiated we didn’t know anything about global warming, ocean acidification or sea level rise,” said Mendenhall, a native of Kansas who joined the URI faculty in 2017. “How did anyone think it would work when it was negotiated before we really understood the ocean we were trying to govern?”
Mendenhall studies how international law and international institutions succeed or fail as the global environment changes.
“As I see it, we created this regime of norms and principles of governing the oceans, but it’s a static law in a changing world,” she said. “How can that law be built in such a way that it’s flexible and adaptive? And if it’s built that way, how can we make sure those features are being used? Right now, we’re being reactive to the changes taking place, and we’re reacting very slowly.”
A major focus of Mendenhall’s work is examining the legal implications of sea level rise on the 200-nautical-mile exclusive economic zones of nations when islands become submerged and coastlines change. When an island disappears, a nation may lose economic control of the maritime territory around the island.
“What happens legally as sea levels rise impacts our ability to achieve peace, stability and sustainability in the century to come,” she said during a TEDx Talk at URI last February.
The question becomes even more complex now that technology enables nations to build artificial islands, which China and other nations are doing in the South China Sea, either to expand their control over a wider swath of the sea or to defend their legal claims.
“China doesn’t legally get to claim that maritime space,” Mendenhall said. “I believe the U.S. should better utilize legal arguments to challenge China’s maritime claims. We could easily make a positive contribution to the interpretation of the Law of the Sea by making declarations and getting other nations to make similar declarations that territorial claims around artificial islands should not be respected.”
Mendenhall is also closely following United Nations negotiations for a treaty to address how biodiversity is managed beyond national jurisdictions in the middle of the oceans. She and a group of colleagues attend all of the negotiations in New York City and interview the delegates.
“The hot button issue is the question of marine genetic resources,” she said. “There are rules for patenting genetic sequences on land and in coastal waters, but there are no rules that apply to the middle of the ocean. If you go to a hydrothermal vent in the middle of the ocean and sequence the DNA of a creature living there, can you patent it? Previous agreements say that all nations control those resources together. So who gets the profits? That has taken up a lot of conversational space.”
Mendenhall is also being encouraged to get into the middle of the public debate about the growing problem of plastic debris in the oceans. She has already published a paper that catalogs scientific research about the topic and lists questions in need of answers before effective policies can be made.
While the media has reported extensively on the effort by the non-profit group The Ocean Cleanup to create a technology that can autonomously extract plastics from the oceans, Mendenhall believes the project is the wrong approach to the problem.
“That approach is all about cleaning up at the end of the chain, rather than fixing the problem at its beginning,” she said. “First, it’s a non-profit funded by donations, which is allowing governments to say that the non-profit world is handling the problem so they don’t have to do anything about it. I also fear it will be a green-washing for the plastics producers so they don’t have to address their role in the problem.
“It’s a real challenge internationally because the source of the problem is in sovereign national territory while most of the consequences are in shared space in the middle of the ocean,” Mendenhall added. “It’s hard to come up with an international agreement that tells you what you have to do domestically.”
The URI professor hopes to address other issues in what she calls “the global commons” as well, including territorial disputes in the Arctic.
“I’ve laid out a big to-do list, and I’m just churning through it,” she said. “What’s next is figuring out how best to utilize the network of other ocean experts at URI. I want to fully take advantage of the resources URI has to offer.”