The Law of the Sea System: open challenges

• Author: Tullio Treves
• Position: Professor at the University of Milano, Faculty of Law. Judge of the International Tribunal for the Law of the Sea.
• Pages: 205-226

The Law of the Sea System: Open Challenges 205

The Law of the Sea System: Open Challenges1

tuLLiotreves

2

Introduction

The United Nations Convention on the Law of the Sea (UNCLOS) of 10 December

1984 is the the centrepiece of today’s international law of the sea. It has codified and

progressively developed this branch of international. One hundred and sixty States

and the European Union are bound by it, confirming the importance of the Convention

within the general framework of international law.

The Convention establishes and presupposes a world that is far away from that of

traditional international law:

(I) A world in which institutions, judges and individuals play a significant

role.

(II) However central, UNCLOS is not all the law of the sea: a variety of

sources participate in building what can be called the “law of the sea

system”.

(III) This system must, in the current post-codification era, meet a number

of challenges consisting in completing tasks set out in UNCLOS and in

confronting new needs and problems.

I. The world of UNCLOS

1. UNCLOS at the centre of a highly institutionalized world

The world of UNCLOS is a highly institutionalized one in which cooperation

between States Parties is an obligation. Under UNCLOS institutions have a powerful

role in implementing cooperation, in fleshing out substantive rules and helping to

keep these rules abreast of developments. UNCLOS provides for the establishment

of new institutions and entrusts tasks to existing ones.

The institutions established in compliance with the rules of the UNCLOS are: the

Meeting of the States parties to the Convention, the International Seabed Authority,

the International Tribunal for the Law of the Sea (ITLOS) and the Commission for the

Limits of the Continental Shelf. All of them have developed a considerable activity

and, at the same time, given rise to some concerns.

1 This article considers some of the questions dealt with in the author’s course on the law of the sea held in July 2010 at the Cursos de

Inverno of international law at the University of Belo Horizonte

2 Professor at the University of Milano, Faculty of Law. Judge of the International Tribunal for the Law of the Sea.

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The Meeting of Sta tes parties under the Conven tion has relatively mode st

functio ns. They consist in adopting the budget of the ITLOS, in elec ting the latter’s

members as well as those of the Commis sion for the limits of the continen tal shelf,

and in recei ving a report by the UN Se cretary-Gener al. In practice, how ever, it has

become a forum in w hich parties , acting by c onsensus, ha ve adopted ad justments

to the LO S Convention, mainly concer ning time-limi ts for electio ns and for

submiss ions to the Commis sion on t he Limits of the Continental Shelf. Wh ether

the Meeting has a broader competence allowin g it to disc uss every kind of law

of th e sea ques tion is ho tly debated as such competence might e ntail a po ssible

duplica tion of th e debates i n the UN G eneral Assembly 3. A questi on discusse d in

scholar ly writin g is w hether the Meeting of Sta tes Partie s may submit a request

for a n Advisory Op inion to the ITLOS, in light of article 138 of t he Rules o f the

Tribunal , which may b e read as en visaging this possibility.

The In ternati onal Sea bed A uthori ty has been ac tive sinc e t he entry in to

forc e of UNCLO S not withsta nding the absenc e of signif icant activ ity fo r the

mini ng of polym etalli c nodu les i n the Intern ationa l Seab ed Area . Thro ugh it s

comp lex struct ure, in part simpl ified by the 1994 Impl ementi ng Ag reement ,

the Auth ority has p roduce d r egulat ions for pro specti ng and explo ration fo r

poly metall ic nodules in 200 0 a nd f or polymet allic sul phides in 2010 an d is

work ing on regula tions on ferr omanga nese crus ts. Eight con tract for exp lorati on

of p olymet allic nodule s have been g ranted . In 20 10 Rus sia su bmitted the f irst

requ est fo r a c ontract of e xplorat ion of polym etalli c sulp hides. The Aut hority

has als o pr oduced sig nifica nt s tudies , i n pa rticul ar a s re gards the imp act of

seab ed m ining on the e nviron ment. It suffers , ne verthe less, from the lack of

inte rest o f a h igh nu mber o f Stat es part ies, t hat of ten fa il to send delegat es to

the A ssembl y meeti ngs in Kingst on, Ja maica, thus m aking i t diff icult t o reac h

the quorum neces sary f or deci sions.

The Int ernation al Tribun al for the Law of th e S ea has been act ive since

1996 and ha s had so far 18 case s, most ly conc erning prompt r elease of vess els

and provis ional measure s. Alth ough its j urisprud ence has b een p raised for its

quali ty and prom ptness, t he Tribunal has no t yet had th e opportun ity to prov e its

capac ity in deali ng wit h a sufficien t numb er of normal conte ntious cases. The

narro wness o f its c ompulsor y juris diction under U NCLOS and the fact t hat so

far States have not entrusted to it a case by ag reement, are probably the main

reaso ns why this ins titution is und eremploye d. The submissi on to t he Tribuna l

in 200 9 of a deli mitation case (Bang la-Desh v. M yanmar) an d the requ est by the

Counc il of the I nternati onal Se abed Aut hority in 2 010 of an a dvisory opinion

to th e Tribunal ’s Sea bed Disp utes Cha mber (whi ch was r endered on 1 Febr uary

2011) seems to indicate a renew al of in terest f or the Trib unal.

3 T. Treves, ‘The General Assembly and the Meeting of States Parties in the Implementation of the LOS Convention’, in A. G. Oude Elferink

(ed.), Stabiliy and Change in the Law of the Sea: The Role of the LOS Convention, Leiden, Boston, Martinus Nijhoff, 2005, pp. 55-74.

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