Change in the Law of the Sea : Context, Mechanisms and Practice

"Unwavering as a lighthouse on a battered shore, the UN Convention on the Law of the Sea (UNCLOS) has served as a legal landmark for almost forty years now. Designed to 'settle all issues relating to the law of the sea', it sets out the framework 'within which all activities on the oceans must be carried out'. Both its substantive and spatial scope are vast; covering over 70 percent of the Earth's surface, the oceans contain 80 percent of life on Earth while sustaining the other 20 percent, and facilitate the carriage of 90 percent of the world's trade". The oceans provide a vivid illustration of the relationship between an ever-changing context and a formalistic legal framework. The 1982 UN Convention on the Law of the Sea, hailed as one of the greatest achievements of international law-making, is confronted with dramatically different present-day exigencies. Change in the Law of the Sea provides an analysis and synthesis of the mechanisms that allow this ‘old’ treaty to respond to its contemporary context, shining new light not only on how change occurs in international law, but also on how the sources of demand for change are themselves changing.See Less Half Title 1 Series Information 2 Title Page 3 Copyright Page 4 Contents 5 List of Cases 11 Abbreviations 16 Chapter 1 The Law of the Sea Amidst Changing Tides 19 1 Introduction 19 2 Change in the Law of the Sea: Reflections on Method, Theory and Scope 22 2.1 A Constitutional Perspective 22 2.2 Stability and Change in Treaties 25 2.3 Conceptualising Change 31 3 Analytical Framework 34 3.1 Law in Context 34 3.2 Mechanisms for Change 39 3.3 Change in Practice 41 4 Outline 42 Chapter 2 Change Throughout Time: Charting a Course towards a Landmark Convention 43 1 Introduction 43 2 A Brief History of the Seas 45 2.1 From ‘Appropriation’ to ‘Appurtenance’ and the Turn to Codification 48 2.2 New Prospects and a New International Economic Order 54 3 The Third UN Conference on the Law of the Sea 59 3.1 The Process 59 3.2 Negotiating Methods: The Consensus Package Deal 60 3.3 The Ideal of Universality and the Disagreement over the Deep Seabed Regime 64 4 Conclusion 67 Chapter 3 Sharing Powers and Balancing Interests: The ‘Deep Structure’ of the Convention 70 1 Introduction 70 2 Sovereignty and Common Interests in the Law of the Sea 72 2.1 The Ambiguous Position of Sovereignty 73 2.2 Sovereign Interest versus Common Interest 76 2.3 A Functional Perception of Sovereignty 82 2.3.1 Consent to Process of Normative Development 84 2.3.2 Conceptions of ‘Commonality’ in unclos and General International Law 86 3 Sovereignty over the Territorial Sea 89 3.1 ‘Subject to the Convention’ 90 3.2 ‘Subject to Other Rules of International Law’ 91 4 Sovereign Rights and Functional Jurisdiction in the eez 94 4.1 Functional Jurisdiction and the ‘Necessity Test’ 96 4.2 Mutual Obligation of ‘Due Regard’ 98 4.3 Distributional Mechanisms in the eez: A Mute Provision 101 5 Sovereign Rights over the Continental Shelf 103 5.1 No ‘Unjustifiable Interference’: Due Regard Extended 104 5.2 Balancing Interests on the Outer Continental Shelf 105 6 Freedom of the High Seas 107 6.1 Due Regard 108 6.2 Supplementing Exclusive Flag State Jurisdiction 109 6.3 A ‘Managed Commons’: Obligations to Cooperate 111 7 The Area: Common Heritage of Humankind 114 7.1 The Common Heritage Principle 116 7.2 Changes Made by the 1994 Implementing Agreement 118 8 Conclusion 120 Chapter 4 Treaty-Based Mechanisms for Change 123 1 Introduction 123 2 Formal Change by the States Parties 125 2.1 Formal Amendment Procedures 126 2.2 Other Mechanisms for Formal Change by States Parties and Their Limits 129 2.2.1 Reservations 129 2.2.2 Inter Se Modification by Subsequent Agreement 131 2.2.3 Other Agreements 135 2.3 Role of the splos 136 2.4 Role of the unga 140 3 Change through unclos Institutions 144 3.1 The clcs 145 3.2 The isa 149 3.2.1 The Institutional Setup of the isa 150 3.2.2 The isa at a Crossroads 153 3.3 The itlos and unclos Dispute Settlement 156 3.3.1 The Compulsory Dispute Settlement System 158 3.3.2 The Role of the itlos 162 3.3.3 The Functions of Dispute Settlement under the Convention 165 4 Change through Rules of Reference 168 4.1 General Functions of the Rules of Reference 171 4.2 Varying Degrees of Normativity 174 4.3 What Are ‘Generally Accepted International Rules and Standards’? 176 4.3.1 ‘Rules’ and ‘Standards’ 178 4.3.2 ‘Generally Accepted’ 179 5 Conclusion 184 Chapter 5 Change through Interpretative Practice 186 1 Introduction 186 2 The Role of Interpretation in the ‘Life’ of a Treaty 189 3 Contemporaneous versus Evolutionary Interpretation 193 3.1 Evolutionary Interpretation and the vclt 198 3.1.1 Common Entry Points for Evolutionary Interpretation 198 3.1.2 The Intention of the Parties 202 3.1.3 Change through Legal Context: Article 31(3)(c) and Systemic Integration 208 3.1.4 Change through Subsequent Conduct: Article 31(3)(a-b) 211 3.2 Conclusions on the Meaning of Evolutionary Interpretation 214 4 Evolutionary Interpretation of unclos 215 4.1 Openings for Judicial Development through Interpretation 217 4.1.1 Recourse to General International Law: Jurisdiction versus Applicable Law 219 4.1.2 Balancing Principles and the Standard of Judicial Review 226 4.1.3 Evolutionary Interpretation of Narrowly Described Rights 234 4.1.4 Evolving Obligations: Due Diligence and the Protection of the Marine Environment 236 4.1.4.1 The Precautionary Approach 243 4.1.4.2 Obligation to Cooperate 244 4.1.4.3 Obligation to Conduct an eia 246 4.1.4.4 Conclusions on the Role of Due Diligence 247 4.2 The Role of Subsequent Agreements 248 4.2.1 Implementing Agreements 249 4.2.2 Regional Agreements 252 4.3 The Role of Subsequent Practice 253 4.3.1 Subsequent Practice, Interpretation and Modification 253 4.3.2 Subsequent Practice and Customary Law 255 4.3.3 The Role of Inconsistent State Practice 257 4.3.4 The Role of Soft Law 258 5 Conclusion 262 Chapter 6 Law in Context: Change in Practice 265 1 Introduction 265 2 Mitigation 266 2.1 Mitigation Measures as Pollution Prevention under unclos 268 2.1.1 Mitigation Standards under the Rules of Reference 270 2.1.2 Duty to Mitigate as Part of the General Obligation of Due Diligence 277 2.2 Ocean-based Negative Emission Technologies and unclos 283 2.2.1 Ocean Fertilisation 286 2.2.2 Carbon Capture and Storage 290 2.2.3 Conclusions on net s, Climate Change and the Rules of Reference 295 3 Adaptation 298 3.1 Legal Adaptation to Changing Physical Circumstances: Sea-level Rise and Existing Maritime Entitlements 300 3.2 Legal Adaptation to Changing Knowledge and Interests: Drafting the Exploitation Regulations for the Area 303 3.2.1 The Development of the isa’s Environmental Mandate over Time 303 3.2.2 Developing the Exploitation Regulations 307 4 Restoration 313 4.1 Marine Environmental Restoration and the Law of the Sea 315 4.2 A Novel Use of the High Seas: The Ocean Cleanup 317 4.2.1 The 2018 Agreement between the Netherlands and toc 318 4.2.2 Balancing Unknown Risks: What Standard of Due Diligence? 321 5 Conclusion 325 Chapter 7 Conclusion 327 1 Change in the Law of the Sea: A Multifaceted and Multi-localised Process 327 2 unclos as a ‘Living Treaty’ or a ‘Living Tree’: Natural Limits to Growth? 331 3 Mechanisms for Change: Between Context and Practice 336 Bibliography 341 Index 369 "[T]he UN Convention on the Law of the Sea (UNCLOS) has served as a legal landmark for almost forty years now. Designed to 'settle all issues relating to the law of the sea', it sets out the framework 'within which all activities on the oceans must be carried out' ... This book builds on the premise that the conclusion of a treaty is thus only the beginning of an ongoing 'law- building process,', and that the formal shape of the instrument or the codification of a norm does not guarantee either its continued stability or its susceptibility to change. Adopting a law-in-context approach, it centres around the research question how (that is, through which mechanisms already present in international law) an 'old' treaty like UNCLOS can respond to demand for change arising from its contemporary context."-- Provided by Publisher "Unwavering as a lighthouse on a battered shore, the UN Convention on the Law of the Sea (UNCLOS) has served as a legal landmark for almost forty years now. Designed to 'settle all issues relating to the law of the sea', it sets out the framework 'within which all activities on the oceans must be carried out'. Both its substantive and spatial scope are vast; covering over 70 percent of the Earth's surface, the oceans contain 80 percent of life on Earth while sustaining the other 20 percent, and facilitate the carriage of 90 percent of the world's trade"-- Provided by publisher