Change in the Law of the Sea

Context, Mechanisms and Practice

Series: 

The oceans provide a vivid illustration of the relationship between an ever-changing context and a formalistic legal framework. The 1982 UN Convention on the Law of the Sea, hailed as one of the greatest achievements of international law-making, is confronted with dramatically different present-day exigencies. Change in the Law of the Sea provides an analysis and synthesis of the mechanisms that allow this ‘old’ treaty to respond to its contemporary context, shining new light not only on how change occurs in international law, but also on how the sources of demand for change are themselves changing.
Copyright Year:
2022
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ISBN:
978-90-04-50855-2
Publication:
28 Feb 2022
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Published
ISBN:
978-90-04-50854-5
Publication:
22 Feb 2022
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Rozemarijn J. Roland Holst (PhD cum laude 2020, Utrecht University) is Assistant Professor of Public International Law at Utrecht University. She has published articles and book chapters on contemporary challenges in the law of the sea and general international law.
List of Cases

Abbreviations

1 The Law of the Sea Amidst Changing Tides
 1 Introduction

 2 Change in the Law of the Sea: Reflections on Method, Theory and Scope
 2.1 A Constitutional Perspective

 2.2 Stability and Change in Treaties

 2.3 Conceptualising Change


 3 Analytical Framework
 3.1 Law in Context

 3.2 Mechanisms for Change

 3.3 Change in Practice


 4 Outline


2 Change Throughout Time Charting a Course towards a Landmark Convention
 1 Introduction

 2 A Brief History of the Seas
 2.1 From ‘Appropriation’ to ‘Appurtenance’ and the Turn to Codification

 2.2 New Prospects and a New International Economic Order


 3 The Third UN Conference on the Law of the Sea
 3.1 The Process

 3.2 Negotiating Methods: The Consensus Package Deal

 3.3 The Ideal of Universality and the Disagreement over the Deep Seabed Regime


 4 Conclusion


3 Sharing Powers and Balancing Interests The ‘Deep Structure’ of the Convention
 1 Introduction

 2 Sovereignty and Common Interests in the Law of the Sea
 2.1 The Ambiguous Position of Sovereignty

 2.2 Sovereign Interest versus Common Interest


 2.3 A Functional Perception of Sovereignty


 2.3.1 Consent to Process of Normative Development

 2.3.2 Conceptions of ‘Commonality’ in unclos and General International Law

 3 Sovereignty over the Territorial Sea
 3.1 ‘Subject to the Convention’

 3.2 ‘Subject to Other Rules of International Law’


 4 Sovereign Rights and Functional Jurisdiction in the eez
 4.1 Functional Jurisdiction and the ‘Necessity Test’

 4.2 Mutual Obligation of ‘Due Regard’

 4.3 Distributional Mechanisms in the eez: A Mute Provision


 5 Sovereign Rights over the Continental Shelf
 5.1 No ‘Unjustifiable Interference’: Due Regard Extended

 5.2 Balancing Interests on the Outer Continental Shelf


 6 Freedom of the High Seas
 6.1 Due Regard

 6.2 Supplementing Exclusive Flag State Jurisdiction

 6.3 A ‘Managed Commons’: Obligations to Cooperate


 7 The Area: Common Heritage of Humankind
 7.1 The Common Heritage Principle

 7.2 Changes Made by the 1994 Implementing Agreement


 8 Conclusion

4 Treaty-Based Mechanisms for Change
 1 Introduction

 2 Formal Change by the States Parties
 2.1 Formal Amendment Procedures

 2.2 Other Mechanisms for Formal Change by States Parties and Their Limits
 2.2.1 Reservations

 2.2.2 Inter Se Modification by Subsequent Agreement

 2.2.3 Other Agreements

 2.3 Role of the splos


 2.4 Role of the unga


 3 Change through unclos Institutions
 3.1 The clcs

 3.2 The isa
 3.2.1 The Institutional Setup of the isa

 3.2.2 The isa at a Crossroads


 3.3 The itlos and unclos Dispute Settlement
 3.3.1 The Compulsory Dispute Settlement System

 3.3.2 The Role of the itlos

 3.3.3 The Functions of Dispute Settlement under the Convention


 4 Change through Rules of Reference
 4.1 General Functions of the Rules of Reference

 4.2 Varying Degrees of Normativity

 4.3 What are ‘Generally Accepted International Rules and Standards’?
 4.3.1 ‘Rules’ and ‘Standards’

 4.3.2 ‘Generally Accepted’


 5 Conclusion


5 Change through Interpretative Practice
 1 Introduction

 2 The Role of Interpretation in the ‘Life’ of a Treaty

 3 Contemporaneous versus Evolutionary Interpretation
 3.1 Evolutionary Interpretation and the vclt
 3.1.1 Common Entry Points for Evolutionary Interpretation

 3.1.2 The Intention of the Parties

 3.1.3 Change through Legal Context: Article 31(3)(c) and Systemic Integration

 3.1.4 Change through Subsequent Conduct: Article 31(3)(a-b)


 3.2 Conclusions on the Meaning of Evolutionary Interpretation


 4 Evolutionary Interpretation of unclos
 4.1 Openings for Judicial Development through Interpretation
 4.1.1 Recourse to General International Law: Jurisdiction versus Applicable Law

 4.1.2 Balancing Principles and the Standard of Judicial Review

 4.1.3 Evolutionary Interpretation of Narrowly Described Rights

 4.1.4 Evolving Obligations: Due Diligence and the Protection of the Marine Environment
 4.1.4.1 The Precautionary Approach

 4.1.4.2 Obligation to Cooperate

 4.1.4.3 Obligation to Conduct an eia

 4.1.4.4 Conclusions on the Role of Due Diligence


 4.2 The Role of Subsequent Agreements
 4.2.1 Implementing Agreements

 4.2.2 Regional Agreements


 4.3 The Role of Subsequent Practice
 4.3.1 Subsequent Practice, Interpretation and Modification

 4.3.2 Subsequent Practice and Customary Law

 4.3.3 The Role of Inconsistent State Practice

 4.3.4 The Role of Soft Law


 5 Conclusion


6 Law in Context Change in Practice
 1 Introduction

 2 Mitigation
 2.1 Mitigation Measures as Pollution Prevention under unclos
 2.1.1 Mitigation Standards under the Rules of Reference

 2.1.2 Duty to Mitigate as Part of the General Obligation of Due Diligence


 2.2 Ocean-Based Negative Emission Technologies and unclos
 2.2.1 Ocean Fertilisation

 2.2.2 Carbon Capture and Storage

 2.2.3 Conclusions on net s, Climate Change and the Rules of Reference


 3 Adaptation
 3.1 Legal Adaptation to Changing Physical Circumstances: Sea-level Rise and Existing Maritime Entitlements

 3.2 Legal Adaptation to Changing Knowledge and Interests: Drafting the Exploitation Regulations for the Area
 3.2.1 The Development of the isa’s Environmental Mandate over Time

 3.2.2 Developing the Exploitation Regulations


 4 Restoration
 4.1 Marine Environmental Restoration and the Law of the Sea

 4.2 A Novel Use of the High Seas: The Ocean Cleanup
 4.2.1 The 2018 Agreement between the Netherlands and toc

 4.2.2 Balancing Unknown Risks: What Standard of Due Diligence?


 5 Conclusion


7 Conclusion
 1 Change in the Law of the Sea: A Multifaceted and Multi-localised Process

 2 unclos as a ‘Living Treaty’ or a ‘Living Tree’: Natural Limits to Growth?

 3 Mechanisms for Change: Between Context and Practice


Bibliography

Index

Scholars, post-graduate and research students, practitioners, (policy) experts in law of the sea, general international law (processes of change, law-making, international institutions), treaty law, global governance (legal dynamics of the Anthropocene).
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