3 UNCLOS as a system of regulation part 1: The intended scope of UNCLOS regulations and the underlying general principles
Contemporary work on the law of the sea, and on UNCLOS in particular, usually draws on the line from Grotius with his argument for the freedom of the sea, Mare Liberum, with the contrasting position arguing for the importance of state sovereignty and dominion, Mare Clausum, to present the modern codification and understanding of the law of the sea.(1) See Treves, “Historical Development of the Law of the Sea”, in Rothwell et.al, (eds.), The International Law of the Sea, 2nd edition, 2015, p. 4. See also Pinto, “Hugo Grotius and the Law of the Sea”, in del Castillo, Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea, p. 2015, p.18 ff., Guilfoyle, “The High Seas”, in Rothwell et.al, (eds.), The Oxford Handbook of the Law of the Sea, 2015, p. 203 f. and Scovazzi, “The Origin of the Theory Sovereignty of the Sea”, in del Castillo (ed.), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea, p. 48 ff. The essence of this idea is that the law of the sea deals with two underlying contrasting state-focused interests: the interest of coastal states in extending their sovereignty from the coastline seawards, and the interest of other states in extending the freedom of the use of the oceans coast-wards. Or to put it with Dupuy’s words: “The sea has always been lashed by two major contrary winds: the wind from the high seas towards the land is the wind of freedom; the wind from the land toward the high sea is the bearer of sovereignties. The law of the sea has always been in the middle between these conflicting forces.”(2) Dupuy, “The Sea under National Competence”, in Dupuy (ed.), A Handbook on the Law of the Sea, 1991, p. 247.
In this sense, the foremost function of UNCLOS is to “cut the cake” and strike a balance between those conflicting interests. This includes above all the question of territory and exercise of sovereignty, as well as rights and privileges in connection with living and non-living resources on the one hand, and, on the other hand, the interest of others in navigating freely on the oceans and participating in the use of the ocean’s resources.
In addition to those two “state-focused” principles, a third is brought into the debate: the principle of the oceans as a “common heritage of mankind”, as codified in Part XI of UNCLOS.(3) Millicay, “The Common Heritage of Mankind: 21st Century Challenges of a Revolutionary Concept”, in del Castillo (ed.), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea, p. 272 ff. This principle is, by contrast with the other two, not directly taking the interest of states as such into account, but instead the interest of all people, both present and future.(4) See Tanaka, The International Law of the Sea, 2nd edition, 2015, p. 19. It is argued that “mankind” is established in UNCLOS as a “novel actor in the law of the sea”, for example being represented by the International Seabed Authority.(5) Tanaka, The International Law of the Sea, 2nd edition, 2015, p. 19 and Feldtmann &Harhoff, “Den Internationale Havret”, in Harhoff et.al. (ed.), Folkeret, 2017, p. 450 f. and 472 f.
On the basis of these interests, it can be argued that the chief function of UNCLOS is to create a general legal regime for the oceans and to balance the interests at stake. The approach in this context is holistic, as is somewhat clearly expressed in the Preamble to UNCLOS, which remarks: “(...) that the problems of ocean space are closely interrelated and need to be considered as a whole”. Thus, UNCLOS is aiming, “with due regard for the sovereignty of all States”, to establish “a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilisation of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment (...)”. This means, in summary, that UNCLOS is trying to achieve a balance between a number of interests and considerations, with the aim of providing a coherent legal system for the use and governance of the oceans.
The above quote from the preamble to UNCLOS also indicates that state interests/state sovereignty are a leading concept in the legal regime created by UNCLOS. In the following discussion we will reflect both on the content of UNCLOS, and on some selected underlying considerations and principles. Our focus will be reflections on UNCLOS as a system of regulation, based on the state-centered principles of UNCLOS. The perspectives we raise here are, however, not to be understood as being isolated from each other; they are interconnected and overlapping.