5 A suggested way forward: Increasing focus on general principles as both an interpretative tool and a gap-filler? An approach stolen from private law conventions
In section 4 above, the uncertainties caused by the unclear interaction between the application and interpretation of UNCLOS, as well as the lack of clarity as to the relevant interpretative rules, have been outlined briefly. The question is then how to break this circularity when going forward in developing a consistent methodological framework for the application and use of UNCLOS.
At this point, it is tentatively suggested that inspiration could be drawn from international private law treaties and model regulations. In the UN Convention for the International Sale of Goods (CISG) 1980, Art. 7 provides
(1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.
(2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.
Thus, this methodological approach provides for the use of general principles, not only as interpretative tools, but also as gap-fillers. If such an approach was also applied within the UNCLOS system, it would provide for an increased focus on the underlying principles of the convention, rather than just a textual approach. Furthermore, it would allow for gap-filling within the convention system, rather than for gap-filling with rules that are external to UNCLOS, such as e.g. rules of national law, and thereby potentially decrease the risk of fragmentation of the law.
In our continued work on the questions of how best to perceive UNCLOS as a system of regulation and which methodology should most appropriately be applied to it, we will investigate the possibility of whether an approach, such as the one exemplified in the CISG Art. 7, will be consistent with both UNCLOS as such and the VCLT, and furthermore, whether applying such an approach will lead to more consistency and relevance when using UNCLOS as an effective tool for governance of the oceans.
In the meantime, we hope that the above has sparked interest and will give rise to discussions.