2 The system and the methodology: General questions
One way to perceive UNCLOS is to understand its many provisions as being framework of provisions, creating a general system for the governance of the oceans. Therefore, by and large, the framework-provisions may remain and the updating of the system takes place in the underlying legal instruments, which may then be amended to accommodate technological development or environmental changes.(1) Notably in the MARPOL and SOLAS systems, see above footnotes 5 and 6. The existence of the two convention systems, with their extensive annexes and protocols, is envisaged in UNCLOS Art. 94(5), as regards the SOLAS Convention, and in UNCLOS Art. 194, regarding the MARPOL Convention system. However, as already indicated above, a significant number of the provisions of UNCLOS contain specific, exhaustive regulation, not just framework-setting, indicating that any new development of the law will necessitate an amendment of UNCLOS. Furthermore, despite the preamble’s indication that UNCLOS provides a comprehensive regulation of “all areas of the law of the sea”, some factual circumstances are simply not explicitly regulated in the Convention, raising the question of whether “new regulation” can only be created through new convention texts.
Such new conventions have already been made. New supplementary convention texts, indicating their respect for the UNCLOS framework, but some of them in reality amending it, have been introduced. From the outset, it was envisaged that the Convention should be supplemented with the 1994 Implementation Agreement and that the 1995 UN Fish Stock Agreement(2) The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995. should be introduced, the latter providing for clear changes to the existing regime.(3) See e.g. 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. 54. Later on, instruments such as the UNESCO Convention on the Protection of the Underwater Cultural Heritage again indicate their respect for the UNCLOS system, even if the Convention provides for international regulation in an area which, under UNCLOS, is quite clearly left to be governed by national law.(4) See e.g. Poznakova, “Historic shipwrecks- contemporary challenges: Protection of underwater cultural heritage” in Wilhemsen, SIMPLY 2015 (Marius 473), p. 97 ff. (p. 108). For a different opinion see Scovazzi, “The entry into force of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage”, Aegean Rev Law Sea (2010) 1:19-36 (p. 32).
Even if the new conventions within the UNCLOS system provide for a way to develop the law of the sea in keeping with the factual changes which the law is supposed to regulate, they also entail a risk of fragmenting the law. Repeated attempts have been made to update existing conventions, e.g. within the private law areas of international law, leading to extensive fragmentation of the law at international level, rather than achieving the up-to-date unification of the law that had been envisaged.(5) An example of this would be the Haag-system of regulation of carriage of goods by sea, where attempts at updating the convention system have led to states being bound by e.g. the Hague Rules (1924), the Hague-Visby Rules (1968), the Hamburg Rules (1978) or the Rotterdam Rules 2009. To complicate the issue further, a number of states have formally acceded to one convention, whilst incorporating (in whole or in part) later conventions into their national law. (For example, Germany is in principle a Hague Rules 1924 State, however, national law has implemented a regulation based on the Hague-Visby Rules 1968. As for the Scandinavian States, they are at present formally bound by the Hague-Visby Rules; however, they have incorporated as much of the Hamburg Rules 1978 as has been deemed possible, without breaking the obligations provided for in the Hague-Visby Rules 1968.) The situation is not unique, and similar confusion exists within the regulation of other types of international carriage of goods by sea.Given all this, there is an inherent risk that a focus on the development of UNCLOS through new ad hoc conventions, as and when the need arises, may ultimately lead to a fragmented and internally inconsistent state of the law, counteracting the unification of laws intended by UNCLOS’ drafters. Further, recent experience with the marine biodiversity in the area beyond national jurisdiction(6) See http://www.un.org/depts/los/biodiversity/prepcom.htm#69/292 for further materials and references. suggests that open processes, which take into account the interests and opinions of a plethora of stakeholders, an approach which is probably necessary in the 21st century in order to achieve legitimacy, may effectively hinder a timely international legislative response, even on ad hoc basis.(7) See list of opinions submitted by state, non-state and other delegations at http://www.un.org/depts/los/biodiversity/prepcom_files/Prep_Com_webpage_views_submitted_by_delegations.pdf for an indication of the attention the issue is attracting.
Against this background, we suggest that, instead of focusing on how UNCLOS may be amended, being ultimately a question of diplomacy and international legislative procedures, one might benefit instead by focusing on the internal mechanisms for development or change within the existing provisions of UNCLOS. Taking this approach, the question of the development of UNCLOS becomes a matter of legal methodology, rather than a question of political will or diplomatic possibilities. Also, arguably, developments within the existing regulation are more likely to receive general acceptance, and less likely to create legal fragmentation. In order to maintain real uniformity of the law - to the extent that such may ever be said to exist - pinpointing the relevant methodologies, and applying them to the existing regulation, will give a clearer view as to how flexible the provisions of UNCLOS really are, both as regards changing and new facts, so that the introduction of new ad hoc regulations can be limited to situations and facts which currently cannot be dealt with within the existing framework.
Reviewing the existing literature, it seems to us that the questions about UNCLOS as a system of regulation, as well as the connected questions of methodology raised here, have, with few exceptions, attracted much less attention from scholars than the question of how the UNCLOS system may be amended and expanded.(8) The subject of how new state practice or case law, as well as new regulation, might help to develop the UNCLOS system seems to be a recurrent focus of legal anthologies, see e.g. Freestone, Barnes and Ong (eds.), “The Law of the Sea, Progress and Prospects”, Oxford 2006; Symmons (ed.), Selected Contemporary Issues in the Law of the Sea, Publications on Ocean Development, vol. 68, Brill - Nijhoff 2011, and Andreone (ed.), The Future of the Law of the Sea, Bridging Gaps Between National, Individual and Common Interest, Springer Open 2017. However, it is only to a very limited extent that questions of the convention’s methodology as it stands are discussed in detail. Perhaps the question is rather easier to pose than to answer, especially with regards to the legal conglomerate that UNCLOS ultimately turned out to be. In order to answer the question, we have identified the following methodological sub-questions which we will develop briefly in section 4:
Level 1 question:
Are there areas of fact, which are related to the sea, but which are simply not governed by UNCLOS at all? This is a question as to the scope of application of UNCLOS.
Level 2 question:
Are there areas of fact that may be said to be within the scope of application of UNCLOS as such, but which are neither a) specifically regulated there, nor b) specifically referred to as being regulated elsewhere, by one of the “switch-board”-provisions? This is a question of how gap-filling may occur under UNCLOS.
Level 3 question:
When interpreting the blackletter rules of UNCLOS, what are the applicable rules of interpretation? The question involves two sub-questions, namely a) the importance of the general rules of the interpretation of treaties, and b) whether or not there are special rules of interpretation that; maybe applicable , due to the pa rticula r nature of UNCLOS.
In a visual illustration, the different questions may be described like this:
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However, before turning; to those three levels of questions, the first qu-estion raised in the introduction, namely: “what was UNCLOS actually intended to regulate and on which general principles is UNCLOS based?”, must be considered. The general principles of UNCLOS are potentially - albeit to differing degrees - of importance for the answer to all of the above three-level-questions and must therefore be addressed ab initio; thit will take place in the following; section.