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Further Development Of The Law Of The Sea Convention: Mechanisms For Change

Published online by Cambridge University Press:  17 January 2008

Abstract

How do treaties evolve? How in particular do we ensure the [durability over time] of a globalconvention, intended to elaborate [a new and comprehensive regime for the law of the sea] ?1 Earlier attempts to do so all failed. Why should the most recent attempt be any more successful?


Type
Research Article
Copyright
Copyright © British Institute of International and Comparative Law 2005

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References

1 UN The Law of the Sea: UN Convention on the Law of the Sea (New York 1997) ‘Introduction’, 1.Google Scholar

2 ibid 1–4. See also Caminos, H and Molitor, MProgressive Development of International Law and the Package Deal’ (1985) 79 AJIL 871CrossRefGoogle Scholar; Buzan, BNegotiating by Consensus:Developments in Technique at the UN Conference on the Law of the Sea’ (1981) 75 AJIL 324.CrossRefGoogle ScholarAllott, P, ‘Powersharing in the Law of the Sea’ (1983) 77 AJIL 1.CrossRefGoogle Scholar

3 Arts 279–99, 309, 311(3).Google Scholar

4 Arts 312–14. See below.Google Scholar

5 See especially Arts 21(2), 119, 207–12. In most cases these global standards are derived from IMO regulatory conventions. See below.Google Scholar

6 At the UN, UNCLOS-related matters are considered at meetings of the parties (Art 319); at an Informal Consultative Process; at the General Assembly; at UN-convened conferences, including the 1992 Rio Conference (UNCED) and the 2002 Johannesburg Conference (WSSD); in UN specialized agencies, including IMO, FAO, and UNESCO, and at IAEA.Google Scholar

7 But see the concluding para of s 5 below.Google Scholar

8 See in particular the 1985 Ozone Layer Convention and the 1992 Framework Convention on Climate Change. Both treaties are in effect outline agreements, requiring further negotiation of more detailed implementing provisions, eg in the 1987 Montreal Protocol and the 1995 Kyoto Protocol respectively.Google Scholar

9 Art 312.Google Scholar

10 Arts 315–16.Google Scholar

11 Reproduced in UN UN Convention on the Law of the Sea (New York 1997).Google ScholarSee Anderson, DHFurther Efforts to Ensure Universal Participation in the UNCLOS’ (1994) 43 ICLQ 886CrossRefGoogle Scholar; Charney, JEntry into Force of the 1982 UNCLOS’ (1995) 35 VaJIL 381.Google Scholar

12 34 ILM 1542 (1995).Google ScholarSee FAO Fisheries Circular No 898,Structure and Process of the 1993–1995 UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks(Rome1995)Google Scholar; Anderson, DHThe Straddling Fish Stocks Agreement of 1995—An Initial Assessment’ (1996) 45 ICLQ 463Google Scholar; Barton, DStrengthening the Law of the Sea: the New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks’ (1996) 27 ODIL 125Google Scholar; Freestone, D and Makuch, ZThe New International Environmental Law of Fisheries: the 1995 UN Straddling Stocks Convention’ (1996) 7 YblEL 3Google Scholar; Davies, P and Redgwell, CThe International Legal Regulation of Straddling Fish Stocks’ (1996) BYIL 199.Google Scholar

13 See also the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas33 ILM 969 (1994)Google Scholar; Edeson, W in Boyle, A and Freestone, D (eds) International Law and Sustainable Development (OUP Oxford 1999), 165. Adopted by FAO to reinforce flag state obligations in respect of high seas fishing, this agreement might be regarded as another ‘implementing agreement’.Google Scholar

14 The 1994 Agreement on Part XI amends the Convention by disapplying certain provisions of Part XI and revising others. It also prevails over inconsistent provisions of the Convention. In practice, non-parties to this agreement are assumed to have acquiesced in the amendment of the Convention. The 1995 Fish Stocks Agreement neither specifically amends UNCLOS nor does it prevail over it, but it does make significant changes in the applicable law. See further, s 2 below.Google Scholar

15 See in particular Freestone, D and Elferink, AO ‘Strengthening the UNCLOs regime through the adoption of implementing agreements etc,’ paper given at 3rd Verzijl Symposium, Utrecht, 2004.Google Scholar

16 See Molenaar, ECoastal State Jurisdiction over Vessel-Source Pollution (Kluwer The Hague 1998) ch 5Google Scholar; Birnie, PW in Ringbom, H (ed) Competing Norms in the Law of Marine Environmental Protection (The Hague 1997), 31Google Scholar; Valenzuela, M in Soons, AH (ed) Implementation of the Law of the Sea Convention Through International Institutions (LOSI Honolulu 1990), 187Google Scholar; Vukas, B in Soons, (ed) op cit 405.Google Scholar

17 See below, s 2.Google Scholar

18 Art 293. See MV Saiga (No 2) (TTLOS, 1999), para. 155; MOX Plant Arbitration (PCA 2003) para 19.Google Scholar

19 Remarks by Koh, TB, reproduced in UN The Law of the Sea: Official Text of the UNCLOS (London 1983) xxxiii. See further the excellent analysis by S Scott ‘The UNCLOS as an International Regime’, a paper given at the 3rd Verzijl Symposium, Utrecht, 2004.Google Scholar

20 On the effect of this status on rules of priority over other treaties see below, s 5.Google Scholar

21 But they can make ‘declarations and statements’ in accordance with Art 310.Google ScholarOn the effect of these see Nelson, DDeclarations, Statements and Disguised Reservations with Respect to the Convention on the Law of the Sea’ (2001) 50 ICLQ 767.CrossRefGoogle Scholar

22 See s 5 below.Google Scholar

23 UN UN Convention on the Law of the Sea ‘Introduction’ 1.Google Scholar

24 See, eg, Golder v UK (1975) 1 EHRR 524 at paras 10–36Google Scholar; Soering v UK (1989) 11 EHRR 439 at para 102Google Scholar; Öcalan v Turkey (2003) 37 EHRR 10.Google Scholar

25 This includes general principles of law: see Golder v UK (1975) 1 EHRR 524 at paras 10–36. But the rules or principles in question must be law: in the OSPAR Arbitration (2003) PCA, at paras 101–5, the arbitrators declined to take account of a treaty that was not in force and a draft EC directive that was not yet law.Google ScholarSee generally McLachlan, C, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279.CrossRefGoogle Scholar

26 Namibia Advisory Opinion (1971) ICJ Reports 16, at 31; Aegean Sea Continental Shelf Case (1978) ICJ Reports 3, at 32–3. See also Bankovic v Belgium (2002) 41 ILM 517, at paras 55–66; Al-Adsani v UK (2001) 123 Int LR 24; Fogarty v UK (2001) 123 Int LR 54; McElhinney v Ireland (2001) 123 Int LR 73. The ICJ's approach, combining both an evolutionary and an intertemporal element, reflects the ILC's commentary to what became Art 31(3)(c).Google ScholarSee ILC, ‘The Law of Treaties’, commentary to draft Art 27, at para (16), in Watts, AD (ed) The International Law Commission 1949–1998 (OUP Oxford 1999), vol II at 690.Google Scholar

27 See also Oil Platforms Case (2003) ICJ Reports, at paras 40–1.Google Scholar

28 Import Prohibition of Certain Shrimp and Shrimp Products, WTO Appellate Body (1998) WT/DS58/AB/R, at paras 130–1.Google ScholarSee Howse, R in Weiler, J (ed) The EU, the WTO and the NAFTA(OUP Oxford 2000) at 54.Google Scholar

29 Oil Platforms Case (2003) ICJ Reports at paras 40–1. See also Gabĉíkovo-Nagymaros Case (1997) ICJ Reports 7, at para 140–1.Google Scholar

30 (1997) I C J Reports 7, separate opinion, at para 12.Google ScholarContrast Sands, ‘Sustainable Development: Treaty, Custom and the Cross-Fertilisation of International Law’ in Boyle, and Freestone, (eds) International Law and Sustainable Development 39.Google Scholar

31 VCLT, Art 31(1). See also OSPAR Arbitration (PCA, 2003) at paras 101–5.Google Scholar

32 See Tunisia/Libya Continental Shelf Case (1982) ICJ Reports 18; Gulf of Maine Case (1984) ICJ Reports 246; Libya/Malta Continental Shelf Case (1985) ICJ Reports 13; Guinea/Guinea-Bissau Maritime Boundary Arbitration (1985) 35 ILM 251; St Pierre and Miquelon Arbitration (1992) 95 ILR 645; Jan Mayen Case (1993) ICJ Reports 38; Qatar/Bahrain Maritime Delimitation Case (2001) ICJ Reports.Google Scholar

33 eg Ireland's attempt to rewrite UNCLOS in the Mox Plant Arbitration (PCA, 2003).Google ScholarFor a contrary view see Sands in Boyle, and Freestone, (eds) International Law and Sustainable Development 39.Google Scholar

34 See Birnie, PW and Boyle, AEInternational Law and the Environment (OUP Oxford 2002) 8 at 408–10.Google Scholar

35 Art 4. However, a state can be a party to the 1995 Agreement without being party to UNCLOS: in that limited sense it is a ‘stand alone’ treaty.Google Scholar

36 See Arts 8(4) and 21.Google Scholar

37 Under Art 116(a) high seas freedom of fishing is subject, inter alia, to ‘other treaty obligations’. Since Art 118 envisages the negotiation of additional fisheries agreements, it seems reasonable to conclude that Art 116(a) covers future treaties as well as existing ones. See Nordquist, M (ed) UNCLOS 1982: A Commentary (Nijhoff The Hague, 1995) vol III 286.Google Scholar

38 See Franckx, EPacta Tertiis and the Agreement for Implementation of the Straddling and Highly Migratory Fish Stocks Provisions of the UNCLOS’ (2000) 8 Tulane JICL 49. Of course this does not preclude the possibility that it may in whole or part reflect or become customary law.Google Scholar

39 ILC, ‘The Law of Treaties,’ commentary to Art 27, at para (14), in Watts, (ed) The ILC vol II 689.Google Scholar

40 These provisions are inherently evolutionary in so far as they set standards for the conservation and management measures states are required to take in the EEZ and on the high seas. See Freestone, , in Boyle, and Freestone, (eds) International Law and Sustainable Development at 159–60.Google Scholar

41 See Edeson, in Boyle and Freestone, ibid, at 172–3; Örebech, et al. , ‘The 1995 UN Straddling and Highly Migratory Fish Stocks Agreement’ (1998) 13 IJMCL, at 140141.Google Scholar

42 However, the argument for uniformity should not be pushed too far. It remains open to individual States to agree alternative interpretations inter se, within the terms of UNCLOS Article 311(3), on which see below. The same point is made in a WTO context by Bartels, Article XX of GATT and the Problem of Extraterritorial Jurisdiction (2002) 36 Journal of World Trade 353, at 361.Google Scholar

43 ILC commentary in Watts, (ed.), The ILC, vol II, at pp 688–9;Google ScholarPauwelyn, J, The Role of Public International Law in the WTO: How Far Can We Go? (2001) 95 AJIL 535, at 575–6; McLachlan, n 25 above, para 16, but note his qualifications to this proposition at para 17. Some authors read Article 31(3)(c) as referring to all the parties to a dispute, rather than all the parties to a treaty. Apart from being inconsistent with the ILC Commentary on Article 31(3), this leaves unanswered the question how the article should be applied in other contexts, eg by treaty COPs, the UN, or foreign ministries. It risks a serious Balkanisation of global treaties implemented by regional agreements. See below, section 4.CrossRefGoogle Scholar

44 In Shrimp-Turtle the AB noted that although the US was not a party to UNCLOS, it did accept the relevant provisions as customary law.Google Scholar

45 See the OSPAR Arbitration (PCA, 2003), at paras 101–5, where the Arbitrators declined even to take into account the Arhus Convention, which was not in force, and which Ireland had not ratified. However, compare the dissent of Griffith, who notes that an agreement may provide guidance even when it is not in force between the parties. In practice much will depend on whether other non-parties acquiesce or not, and on the issue in dispute. In Shrimp-Turtle the United States did not object to the Appellate Body taking the Biological Diversity Convention into account, even though the US is not a party. It is difficult to see how any tribunal could do otherwise, given the almost universal participation by other States in this treaty.Google Scholar

46 See to the same effect Franckx (2000) 8 Tulane JICL 49.Google Scholar

47 See, eg, 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res. 1514 (XV); 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UNGA Res.2625 (XXV); Western Sahara Advisory Opinion (1975) ICJ Reports 12; Nicaragua Case (1986) ICJ Reports 14.Google Scholar

48 See 2004 Rules of Procedure of the CLCS, Rule 46 and Annex I, CLCS/40 (2004).Google Scholar

49 However some States expressed significant reservations when adopting the Plan of Action:see FAO, Rept. of the Committee on Fisheries, 24th Session (2001).Google Scholar

50 Moore, G, in EHey, (ed) Developments in International Fisheries Law (Kluwer The Hague 1999) at 91–2.Google Scholar

51 In Boyle, and Freestone, (eds) International Law and Sustainable Development, at 165.Google ScholarSee also Edeson, W ‘Soft and Hard Law Aspects of Fisheries Issues’ inNordquist, , Moore, , and Mahmoudi, (eds) The Stockholm Declaration and Law of the Marine Environment (Nijhoff The Hague 2003) 165.Google Scholar

52 Thus in Golder the ECHR referred to access to a court as a ‘general principle of law’ when interpreting Art 6 of the European Convention on Human Rights. Note, however, that general principles cannot override or amend the express terms of a treaty: see Beef Hormones Case (1998) WTO Appellate Body, WT/DS26/AB/R (1997), paras 124–5.Google Scholar

53 See Gab^íkovo Case (1997) ICJ Reports 7, at para 140;Google ScholarLowe, AV, in Boyle, and Freestone, (eds) International Law and Sustainable Development at 31.Google Scholar

54 See, eg, Southern Bluefin Tuna Cases (Provisonal Measures) (1999) ITLOS Nos 3 and 4, paras 77–9, and Judges Laing at paras 16–19; Treves at para 9, and Shearer.Google ScholarSee also Nordquist, (ed) UNCLOS Commentary, vol III 288,Google Scholarand Freestone, , who makes the same point in Boyle, and Freestone, (eds) International Law and Sustainable Development at 140.Google Scholar

55 See Rao, PS, Rept of the ILC (2000) GAOR A/55/10, para 716, who concludes that the precautionary principle is already included in the principles of prevention and prior authorization, and in environmental impact assessment, ‘and could not be divorced therefrom’.Google ScholarAs Brownlie, IPrinciples of Public International Law (5th ednOUP Oxford, 1998) 285–6 observes, ‘The point which stands out is that some applications of the principle, which is based on the concept of foreseeable risk to other states, are encompassed within existing concepts of state responsibility.’Google Scholar

56 As for example in the 1995 Fish Stocks Agreement, Art 6.Google Scholar

57 Convention on the Territorial Sea and Contiguous Zone, Art 4(4) (straight baselines) and Convention on the High Seas, Art 12(2) (search and rescue).Google ScholarSee Crawford, in UN, International Law on the Eve of the Twenty First Century (UN New York 1997) 99.Google Scholar

58 See, eg, Norwegian Fisheries Case (1951) ICJ Reports 116; Icelandic Fisheries Cases (1974) ICJ Reports 3 and 175; North Sea Continental Shelf Case (1969) ICJ Reports 3.Google Scholar

59 Art 122–3. The MOX Plant Arbitration (2003) reveals sharply differing views about the implications of these articles for regional cooperation.Google Scholar

60 See Birnie, and Boyle, International Law and the Environment, at 349 and 354–5.Google Scholar

61 Rept of the UN Conference on Environment and Development UN Doc. A/Conf. 151/26/Rev 1 (1992) vol I; Rept of the WSSD UN Doc A/Conf 199/20 (2002).Google Scholar

62 Notably in the 1992 OSPAR Agreement, the 1992 Helsinki Agreement, the 1995 Barcelona Convention and its 1996 protocols, and the 1999 Kingston Protocol.Google Scholar

63 Yankov, A in Boyle, and Freestone, (eds) International Law and Sustainable Development at 272. Chapter 17 of Agenda 21 introduces several new elements not found in UNCLOS that are intended to modernise its environmental provisions: An emphasis on integrated and precautionary approaches to protection of the marine and coastal environment. The precautionary approach requires states to take greater account of scientific uncertainty when regulating environmental risk. A broader focus on the prevention of environmental ‘degradation’ and the protection of marine ecosystems, not limited to control of sources of pollution alone. Protection of the exclusive economic zone is linked with sustainable development of coastal areas and sustainable use of marine living resources.Google Scholar

64 Boyle, and Freestone, (eds) International Law and Sustainable Development at 272.Google Scholar

65 See also 1995 UN Fish Stocks Agreement, Art 44 of which is in similar terms.Google Scholar

66 Nordquist, (ed) UNCLOS Commentary, vol V at 238–40.Google Scholar

67 1969 VCLT Art 30(5). This includes the lex posteriori rule.Google ScholarSee generally Pauwelyn, JConflict of Norms in Public International Law (CUP Cambridge 2003) 302–15.CrossRefGoogle Scholar

68 ILC ‘Law of Treaties’, commentary to draft Art 26, para 7, in Watts, The ILC, vol II at 678.Google Scholar

69 See Pauwelyn, Conflict of Norms at 312–13, who concludes: ‘although the inter se agreement is not invalid or void under the law of treaties, as a result of its illegality grounded in Art.41 or Art.58 and the law of state responsibility, the inter se agreement must be ended and cannot, therefore, be enforced, not even as between the parties to it…. This explains why Arts 41 and 58 provide for an exception to the contractual freedom of states.’Google ScholarHe relies in part on Rosenne, SBreach of Treaty (CUP Cambridge 1985) at 89, who argues that such agreements may be invalid. The competing view is that Art 311(3) affects only the priority or applicability of inter se treaties, not their validity: see Pauwelyn op cit at 310–11.Google Scholar

70 See Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean, ITLOS No 7, Order No 2000/3 (2000).Google Scholar

71 The 2000 Framework Agreement for the Conservation of the Fishery Resources of the Southeast Pacific High Seas. Negotiated by Chile, , Peru, and Ecuador, , Art 12 of the Agreement gives coastal states preferential voting rights on conservation measures and catch allocation. Following a provisional settlement of the dispute, the Galapagos Agreement has not entered into force. Art 311 was also an issue in the Southern Bluefin Tuna Cases (TTLOS Nos 3 and 4 1999 and Arbitral Award ICSID 2000).Google Scholar

72 Notably in parts VII, IX, and XII.Google Scholar

73 See UN/CBD, Study of the Relationship between the CBD and UNCLOS with Regard to the Deep Seabed (2004) UNEP/CBD/SBTTA/8/INF.Google Scholar

74 Nordquist, (ed) UNCLOS Commentary vol IV 423–6.Google Scholar

75 Arts 61, 64–7, 117–20, 194(5).Google Scholar

76 2003 Proliferation Security Initiative. The FCO version states: ‘The PSI is consistent with United Nations Security Council Resolution 1540, the first ever resolution on non-proliferation issues, adopted on 28 04 2004. The resolution “calls upon all States, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials.”’Google Scholar

77 1988 Convention against Illicit Traffic in Narcotic Drugs, Arts 4 and 17.Google Scholar

78 1989 Basel, , Convention on Transboundary Movement of Hazardous Waste, Art 4(12).Google Scholar

79 2001 Convention on the Protection of Underwater Cultural Heritage, Art 3.Google Scholar

80 See references at n 12 above.Google Scholar

81 See Agenda 21, Ch 17, in UN, Report of the UN Conference on Environment and Development (1992) UNDoc A/Conf 151/26/Rev 1, vol I; UNGA Res 54/33 (1999).Google Scholar

82 See 1969 VCLT, Arts 30, 41, and 53.Google Scholar

83 Conflict of Norms, at 369.Google Scholar

84 Swordfish and Shrimp-Turtle.Google Scholar

85 Last sentence of Art 3(2) DSU and Art 19(2) DSU.Google Scholar

86 WTO Appellate Body, Impori Prohibition of Certain Shrimp and Shrimp Products (1998) WT/DS58/AB/R.Google ScholarSee Howse, R, in Weiler, (ed), The EU, the WTO and the NAFTA, at 54.Google Scholar

87 For a much fuller treatment of the applicability of international law within the WTO Dispute Settlement Body, see Pauwelyn, JThe Role of Public International Law in the WTO: How Far Can We Go?’ (2001) 95 AJ1L 535).Google Scholar

88 WTO Appellate Body (1998) WT/DS58/AB/R, at paras 166–72. In its Shrimp-Turtle Art 21.5 decision WT/DS58/AB/RW (2001) the Appellate Body held that: ‘The conclusion of a multilateral agreement requires the cooperation and commitment of many countries. In our view, the United States cannot be held to have engaged in “arbitrary or unjustifiable discrimination” under Article XX solely because one international negotiation resulted in an agreement while another did not.’Google Scholar

89 1994 Agreement Relating to Part XI, Annex, s 6(l)(b); 2001 FAO Plan of Action to Prevent IUU Fishing paras 65–8.Google Scholar

90 Pauwelyn, Conflict of Norms at 315–24.Google Scholar

91 On its own terms the lex posteriori rule in Art 30 of the VCLT applies only to successive treaties ‘relating to the same subject matter’. Reuter, PIntroduction to the Law of Treaties (KPI London 1995) 132, para 201, thus notes that: ‘The rule of article 30 would therefore only apply to treaties with subject matters of a comparable degree of “generality”.’ See also Aust Modern Treaty Law and Practice 183;Google ScholarSinclair, IThe Vienna Convention on the Law of Treaties (2nd ednMUP Manchester 1984) 96–8; Pauwelyn Conflict of Norms 364–6 and 406–9.Google Scholar

92 Sinclair, Vienna Convention 96.Google Scholar

93 Request for Provisional Measures (Order) ITLOS No 10 ((2001) at paras 82–4 and operative para 1.Google Scholar

94 Request for Provisional Measures (Order) ITLOS Nos 3 and 4 (1999).Google Scholar

95 See Swordfish Case, ITLOS No 7, Order No 2000/3 (2000), and EC-Chile: Measures Affecting the Transit and Importation of Swordfish, WT/DS193 (2000).Google Scholar

96 ILC, ‘Law of Treaties,’ commentary to draft Art 26, at para (7), in Watts The ILC vol II at 677.Google Scholar

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