Evolution of the law of the sea: developments in law-making in the wake of the 1982 Law of the Sea Convention
Date
2008Author
Harrison, James
Metadata
Abstract
It is no exaggeration to say that the Third United Nations Conference on the
Law of the Sea was one of the most important law-making events of the twentieth
century. It heralded the beginning of a revolution in international law by introducing
a new law-making technique based on consensus decision-making and universal
participation. It also produced a comprehensive treaty on the law of the sea. The
resulting Law of the Sea Convention is commonly claimed to provide a universal
legal framework for all ocean activities.
Upon this background, it is pertinent to ask, what is the future for the LOS
Convention and the law of the sea in the twenty-first century? How does the
Convention evolve to take into account changing values, policies and preferences of
the international community? How have developments in law-making techniques
influenced the way in which the law of the sea is created and changed?
This thesis initially establishes the legal basis for the LOS Convention as a
universal framework for the law of sea. It shows how the negotiation of the
Convention substantially influenced customary international law so that it is possible
to speak of a universal law of the sea. Yet, the status of the Convention as universal
law poses problems for its future development because it cannot be considered solely
from the perspective of the law of treaties. The thesis will therefore consider the
mechanisms for change contained within the Convention alongside other law-making
processes out-with the formal treaty framework. Central to this analysis is the role of
institutions in modern international law-making. The thesis looks at the part played
by political and technical institutions in developing the law of the sea through
interpretation, modification, and amendment, as well as at the ways in which these
institutions have utilised and developed the consensus decision-making techniques
first seen at UNCLOS III. It will also analyse the role of courts and tribunals in
maintaining and developing the legal order of the oceans.
This analysis shows that the Convention provides the legal framework for the
modern law of the sea for all states. In this context, institutional processes have
largely replaced unilateral state practice in law-making. Moreover, states have shown
a preference for flexibility and pragmatism over formal amendment procedures. The
greatest achievement of the LOS Convention is the creation of a stable legal order for
the oceans. To ensure this stability is maintained, continued discussion, deliberation
and compromise through international institutions is vital.