4 UNCLOS as a system of regulation part 2: The methodological challenges
Returning to the three levels of questions illustrated above in section 2, these questions are difficult to answer due to the very structure of the convention, and the content/wording applied within it.
As for the Level 1 question, namely what is the scope of application of UNCLOS?, its scope is hard to delineate. One approach to answering this question could be to turn to the preamble and conclude that the scope of application is “all issues relating to the law of the sea”. However, this would be an insufficient answer. More generally speaking, from the perspective of the law of treaties, it can be expected that a treaty will contain a rather well-defined regulation of the scope of application of the treaty.(1) See e.g. Vienna Convention on the law of treaties 1969, Art. 1, 3, and 5; United Nations Convention for the Carriage of Goods by Sea 1978, Art.2; Hague Convention on the Law Applicable to the International Sale of Goods 1986, Art.1-Art.6; United Nations Convention for the International Sale of Goods 1980, Art.1-Art.6.; Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007, Art.2. It may be that the subject matter of the treaty in question is so narrow that the scope of application may be taken for granted;(2) See e.g. Vienna Convention on Diplomatic Relations, agreed at Vienna on 18 April 1961. The convention does not contain traditional provisions on the scope of application; however, the subject matter of the convention is so narrow that the scope may be said to follow from the convention’s title. however, most conventions contain provisions defining when they should be applied - often containing criteria of both geographical and substantive nature. Article 1 of UNCLOS defines its “use of terms and scope”, but the wording does not provide for a traditional definition of the scope of application of the convention. Whether or not the provisions of the convention apply to a certain question can therefore not be answered on a general level, but will instead have to be considered by scrutiny of the relevant provisions. These provisions may define their scope of application either in a substantive manner, by referring to a particular problem, or by more objective means of a geographical nature. However, it is characteristic of UNCLOS that the term “scope” is rarely used. An exception may be found in Art. 134,(3) See e.g. Art. 134, regarding the scope of application of the rules on the Area. which indicates a distinct regime for the area beyond national jurisdiction, but apart from that, the scope of both the convention and the provisions within it must generally be determined by interpretation. On this basis, the question of whether an issue of fact or law is indeed governed by the convention will, to some extent, depend upon the interpretation of the sometimes rather broad and vague provisions of the convention.
The need to interpret a convention text which is focused on substantive regulation, before one can determine the area of application of the selfsame rule, involves a certain level of circularity. This could indicate that the application of UNCLOS is presumed until proven otherwise. This would also be in line with the intention of UNCLOS, as stated in the preamble. Combining this with the fact that, due to the zonal system, the Convention will have at least some regulation for all sea areas, it may by argued that all marine and maritime activity is ultimately - to some extent - covered by UNCLOS; if nothing else, through the “switchboard system”. On adopting such a standpoint, the question of how to fill the gaps (the level 2 question) in the convention becomes pivotal, since it is clear, as has already been stated, that the level of black letter regulation in UNCLOS, even when including its framework and switchboard provisions, cannot realistically (and does not) provide for regulation of all possible factual scenarios. Or in other words: the more all-encompassing the scope of application that one allocates to UNCLOS, the more questions one is going to encounter regarding the gap-filling between, and the interpretation of, the blackletter regulations, as the UNCLOS is stretched (too?) thin. On the contrary, defining the scope of UNCLOS as narrowly as possible will generally leave fewer uncertainties within its scope, but on the other hand will leave more areas of fact or law to be dealt with by national law in the different states, so giving rise to less overall uniformity in the regulation, and contradicting its overall intention.
Turning to the Level 3 question of interpretation, the general regulation on the interpretation of treaties is the Vienna Convention on the Law of Treaties 1969 (VCLT), and this also applies to UNCLOS. According to the VCLT Art. 31(1), “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” The provision takes its starting point in the ordinary meaning of the “terms” in question, including, according to Art. 31(2), its preamble and annexes. In this way, “ordinary meaning” is chosen rather than e.g. “literal interpretation”, and furthermore the importance of the ordinary meaning is put on a par with the context and object and purpose of the convention.(4) Aust, Handbook of International Law, 2nd ed., Cambridge 2010, p. 83 f. All three interpretative tools are thus to be seen as being of equal importance. Even so, the provision focuses primarily on the text that is already in the treaty/the black letter rules of the treaty, and the effectiveness of Art. 31(1) with regard to actual gap filling is somewhat limited. Still, as regards interpretation, the provision allows for regard to be given to the treaty’s object and purpose and emphasises the relevance of these by requiring that the treaty be interpreted in good faith.
This emphasis on a textual but always teleological approach(5) Crawford, Brownlie’s Principles of Public International Law, 8th ed., Oxford University Press 2012. leaves the road open to applying considerations as to the purpose of UNCLOS, when left with doubts as to the meaning of the Convention’s provisions. In our view, this would indicate that the interpreter may take the general principles distilled above under point 3 into consideration and that the teleological interpretation may be on the basis of not only the stated purposes of the different parts of the convention, but also its general principles. However, the extent to which the same approach may also be used in situations of actual gap-filling within the Convention’s scope is less clear. Basically, it may be argued that there needs to be a convention text to interpret, in order for the VCLT Art. 31(1) to be relevant.
The law of the sea has been described as an “ever-growing body of additional treaties, frameworks, and state practice for the governance and the management of the world’s oceans”.(6) Rothwell & Stephens, The International Law of the Sea, 2nd edition, 2016 p. 1. As already indicated, this means that the law of the sea is becoming more detailed over time in regulating various specific aspects connected to the oceans, such as fish stocks, military use of the oceans and marine environmental protection, to name but a few. This raises the further question of the relationship between, respectively, UNCLOS and other international legal acts of the law of the sea, and international law in general. The VCLT Art. 31(3) indicates that when interpreting a convention, “[a]ny subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions...” as well as “[a]ny relevant rules of international law applicable in the relations between the parties...” should be taken into account. The idea that a convention system develops over time is therefore not foreign to the VCLT, and in particular, international agreements and regulations made according to one of UNCLOS’ framework provisions, may therefore reflect back on the understanding of UNCLOS itself. However, UNCLOS continuously underlines that it is in keeping with and respects existing rules and bodies of international law. So, the question is, which interpretative rule exists if the regulation of such a body of law overlaps with UNCLOS’s rules? Is UNCLOS in this sense a lex generalis to be supplemented by more specific regulations, and in keeping with this view: should UNCLOS give precedence to such other rules? Or is UNCLOS instead, being perceived as “the constitution of the oceans” as raised above in point 1, rather to be understood as being a lex superior, overruling other regulation? Obviously, the two starting points are mutually exclusive as an overall rule of interpretation. At the present point of our research, however, it seems that it is not a question of choosing once and for all between the two starting points, but instead that the starting point will need to be dealt with on a case by case basis, depending on which part of the UNCLOS we are dealing with. To the extent that one considers the parts of UNCLOS that provide for exhaustive and comprehensive regulation, a lex superior-approach may be appropriate, whereas the lex generalis principle seems more fitting when considering the framework and switchboard provisions.