1 Introduction
According to its preamble, the drafting of the United Nations Convention of the Law of the Sea (UNCLOS) was “[p]rompted by the desire to settle ... all issues relating to the law of the sea”.(1) Preamble of UNCLOS, 1st sentence. This is a direct reference to the mandate of the Third UN Conference on the Law of the Sea (1973-1982), which led to the adoption of UNCLOS.(2) On the Third UN Conference on the Law of the Sea (1973-1982) and the process towards the adoption of UNCLOS see Tanaka, The International Law of the Sea, 2nd edition, 2015, p. 20 ff. (24 ff.); Rothwell & Stephens, The International Law of the Sea, 2nd edition, 2016, p. 14 and Tanaka, The International Law of the Sea, 2nd edition, 2015, p.6 ff. (12 ff.). The UN General Assembly Resolution 3067/1973 stated that “the mandate of the Conference shall be to adopt a convention dealing with all matters relating to the law of the sea (...)”. Given this approach, it is not surprising that since the 1980’s, legal scholars have described UNCLOS as the “constitution of the oceans”,(3) Rothwell, Oude Elferink, Scott & Stephens, “Charting the Future for the Law of the Sea”, in Rothwell et.al, (eds.), The Oxford Handbook of the Law of the Sea, 2015, p. 904 ff. See also Scott, “The LOS Convention as a Constitutional Regime for the Oceans”, in Elferink (ed.),”Stability and Change in the Law of the Sea: The Role of the LOS Convention”, 2005, p. 9 ff. providing a “comprehensive” system for the governance of the law of the sea.(4) See for example Rothwell & Stephens, The International Law of the Sea, 2nd edition, 2016, p. 14 and Tanaka, The International Law of the Sea, 2nd edition, 2015, p. 30 f. A different approach is taken by Churchill, “The 1982 United Nations Convention on the Law of the Sea”, in Rothwell et.al, (eds.), The Oxford Handbook of the Law of the Sea, 2015, p. 29 f.
The inference from the taxonomy should not be drawn too widely. If one expects that, by studying UNCLOS, one will be able to answer any question of law relating to the law of the sea, disappointment may ensue. For example, some major issues relating to the protection of the marine environment are only regulated to a very limited extent in UNCLOS and are addressed more specifically in other specific regulation, such as the regulations issued under the MARPOL(5) The International Convention for the Prevention of Pollution from Ships, 1973, with later protocols and annexes. and SOLAS(6) The International Convention for the Safety of Life at Sea, 1974. conventions, dealing with maritime pollution and safety at sea respectively.
However, if one instead regards UNCLOS as providing a general framework regulation and switchboard-system, designed to indicate which law,(7) See e.g. Art. 211(4), indicating that the coastal state may “...adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage [...]”, insofar as such rules do not hamper the right of innocent passage. treaty,(8) See e.g. Art. 110(1) on the right of visit, or art. 138 which specifically refers to the application of the UN Charter. system of laws,(9) UNCLOS continuously states that the convention should be seen in the light of, and should respect, international law in general (“international law” is referred to over 30 times in the entire convention text). or practice,(10) See e.g. Art. 39(2): Ships in transit passage shall: (a) comply with generally accepted international regulations,procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea;(b) comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships. [Writer’s emphasis]. The word “practices” must be seen as referring to accepted practices in the relevant trade, and thus goes beyond what is found in officially issued guidelines and rules. should regulate a given question of relevance to the law of the sea, one might then argue that the goal of settling all issues of the law of the sea has generally been achieved. Thus, it may be argued that the system in itself, if not the minutia of the regulation, is comprehensive. Furthermore, within certain core areas of the law of the sea, such as e.g. the division of resources and territories(11) Generally, the zonal system provided for in UNCLOS must be seen as providing both a comprehensive system of regulation and an exhaustive regulation of the conditions under which states may claim jurisdiction based on the principle of territoriality and also a regulation of who may appropriate resources available in the different zones. See further below in point 3.1. and certain issues regarding law enforcement,(12) See e.g. Art. 27 regarding criminal jurisdiction on foreign ships passing through the territorial sea, or Art. 105 on the possibility that a state seizing a suspected pirate vessel may e.g. also impose its criminal jurisdiction on the persons onboard the vessel. UNCLOS provides not only what can reasonably be described as a “comprehensive system”,(13) See above, footnote 4.but also - in practical terms - an exhaustive one.
Attempting to create a “comprehensive system of regulation”, and thereby setting in stone such a wide spectrum law, relating to a multitude of possible issues, as has been done in UNCLOS, creates the inherent risk of fossilizing the development of the law. This was already foreseen at the drafting stage, resulting in a procedure for amendment of the existing convention text being inserted into its Article 311. So far, however, this provision has not been invoked, and it has been argued that the procedure is quite challenging, meaning that amendments are not the most likely option.(14) See Buga, “Between Stability and Change in the Law of the Sea Convention: Subsequent Practice, Treaty Modification, and Regime Interaction”, in Rothwell et al, Oxford Handbook on the Law of the Sea 2015, p. 46 ff. (p. 47). As a result, the wording of the existing provisions in UNCLOS seems firmly set. Nonetheless, the Convention has to operate in a factual setting, influenced by changing political agenda, new emerging challenges and developments, as well as increasingly rapid climate change. As a consequence, the question has been raised of how to develop and interpret UNCLOS, so that it is remains appropriate in ever changing circumstances - and thereby hopefully maintains the political support and legal legitimacy it is considered to have(15) See Buga op.cit. and Boyle, “The Law of the Sea, Progress and Prospects” in Freestone, Barnes and Ong, Oxford 2006, p. 1, ff. and Boyle in the same work on p. 40 ff..
Against this background this article will therefore present our initial reflections on two supposedly simple, interconnected questions concerning the understanding and development of UNCLOS: 1) What is UNCLOS intended to regulate and which general principles govern that regulation, and 2) What is the legal methodology which should be applied to UNCLOS when we reach the limit of specific, clear-cut regulation? Our purpose here is to provide some general reflections on UNCLOS as a system of regulation and connected methodology, by focusing on selected issues of the law of the sea. We are neither claiming to provide an in-depth analysis of all questions posed, nor to provide the final answers, as our preliminary thoughts presented here are part of our on-going research project: “Policing at Sea (PolSEA)”.(16) The issues raised here will be further examined and developed, partly by applying some of these initial thoughts to case studies, partly by returning at intervals to the actual questions of how the methodology may be developed. This work is conducted under our interdisciplinary research project “Policing at Sea (PolSEA)”, under the Danish Council for Free Research involving four Danish universities (University of Aalborg, University of Aarhus, University of Southern Denmark and Copenhagen Buisness School). Our aim at this juncture is therefore to provide some examples to introduce the issue at stake as a starting point for our considerations and thereby to invite further reflection and discussion. We start our reflections in section 2, by raising some general questions in connection with UNCLOS and developing our framework of considerations. This is followed in section 3 by our reflections on the scope of UNCLOS, as well as the central underlying principles illustrating UNCLOS as a system of regulation, followed by reflections on methodological challenges in section 4. We conclude our considerations in section 5, with an attempt to offer a new methodical approach.