Unconventional Lawmaking in the Law of the Sea PDF
Preview Unconventional Lawmaking in the Law of the Sea
Unconventional Lawmaking in the Law of the Sea Unconventional Lawmaking in the Law of the Sea Edited by NATALIE KLEIN UNSW Sydney 1 3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2022 The moral rights of the authors have been asserted First Edition published in 2022 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. 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Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. Foreword I One of the predominant features of contemporary societies is their flexibility to incorporate remarkable changes in people’s lives. The international community is no exception. This book, Unconventional Lawmaking in the Law of the Sea, edited by Natalie Klein,1 is about how the international community is evolving as a result of change, and responding to its challenges and complexities by developing international rules and standards of behav- iour that take account of the effects of change. Although states are the main actors within the international system, different actors other than states operating in the international scene are also contributing to the develop- ment of international law. Technology also plays a significant role in bringing about important changes in the manner in which human activities are conducted in the international field, which may re- quire the adoption of regulations due to the impact of new technologies on the environment. However, states seem to be a step behind in the process of adapting formal international law to certain new situations that must be acknowledged in order to ensure governance in international society. Hence, a variety of new forms of ‘unconventional’ lawmaking are actually posing a real test to traditional legal thinking attached to well-e stablished concepts arising from the sources of international law formally recognized in Article 38 of the Statute of the International Court of Justice. The possibility of considering ‘informal’ or ‘unconventional’ lawmaking as an inde- pendent source in the realm of traditional jurisprudence has yet to be seen, even though an important segment of international regulations appears to be considered by many scholars as a tool for the development of international law. Many of those regulations are being clas- sified; some regulations are defined as ‘soft law’, while other ‘informal’ rules are considered, if not ‘binding’ in a formal legal sense, to be effective regulations that transcend the notion of ‘soft law’. Different diagnoses attached to traditional legal thinking in international law have not, so far, been able to convey a suitable theory of how the international legal system actually functions, in order to encompass all the complexities and changes and issues that are trans- forming the current international scene, and the legal system thereof. Conventional legal thinking, in general terms, tends to be conservative. The ‘formal’ ways and means to adapt international law to changes in the international field are solely operated by states. A variety of mechanisms exist, but most important are the rules concerning the interpretation, and the amendments and modification of treaties, as 1 The editor of this book, Natalie Klein, is well-k nown as a scholar and author in topics related to the law of the sea, with a trajectory of more than twenty years of unyielding and valuable research. vi Foreword defined in the Vienna Convention on the Law of Treaties (VCLT), in Articles 31 to 33 and Articles 39 to 41. Subsequent practice, a process informal in character, is specifically mentioned in the VCLT as relevant for the interpretation of treaties. It is interesting to highlight subsequent practice as a factor for adaptation, since it has been considered a useful tool for interpreting the meaning of international legal instruments. Given its informal character, it is considered to be efficient in facilitating the process of adaptation of treaties.2 The common understanding is that subsequent practice is a concept applicable only to state parties, and most rightly so, since states are the actors intervening in the making of formal international law. However, given the fact that informal lawmaking in the inter- national sphere is taking place, one may well wonder if a subsequent practice by actors other than states is indirectly influencing the process of adaptation to change through the adoption of rules, regulations, memoranda of understanding, codes of conduct or standards. II The United Nations Convention on the Law of the Sea (LOSC) is an example of the way in which substantial changes have been introduced in the international legal order concerning governance in the seas and oceans, through the adoption of a treaty negotiated in an inter- national conference: the Third United Nations Conference on the Law of the Sea. This is truly conventional lawmaking. Yet, the main purpose of this book, as its title readily conveys, is to clearly expose the ap- pearance of an important segment of international regulations, the origins of which do not respond to the traditional sources recognized by ‘formal’ international law, and to beg the questions for which the science of jurisprudence should find answers. As Natalie Klein, the editor of this book, explains in Part I (Introduction), the purpose of the book is to under- stand this international practice ‘within the law of the sea’. The topic of this book— to determine what informal law is and what it is not—i s an im- portant, interesting, and thought-p rovoking journey into the realm of legal science, as are the profound and thorough analyses, following the introduction, of different examples of how ‘unconventional’ or ‘informal’ lawmaking have influenced the law of the sea in dif- ferent ways. 2 For example, Irina Buga states that, ‘the informal character of subsequent practice can facilitate treaty adapta- tion even if uncertainty remains as to certain aspects of the process. Subsequent practice is relevant to the LOSC in a number of ways: First, it serves as a tool for treaty interpretation, pursuant to Article 31 of the Vienna Convention on the Law of Treaties (VCLT). Second, and crucially, it can constitute the parties agreement to modify the treaty. This may be the case where subsequent practice diverges from the text to such an extent that it can no longer be said to constitute an act of interpretation, but rather becomes, in effect, an act of modification . . . This process of tacit modification by subsequent practice is not incompatible with the rigid mechanisms for formal amendment in the LOSC. Third, subsequent practice can potentially generate new (regional or universal) customary norms that may, as lex posterior, impact LOSC obligations. Through its various legal effects, subsequent practice can also serve as a vehicle to regime interaction, adapting the Convention in line with the developments in other fields as environmental law.’: Irina Buga, ‘Between Stability and Change in the Law of the Sea—S ubsequent practice, Treaty Modification, and Regime Interaction’ in DR Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 46, 47–4 8. Foreword vii At the outset, an overriding consideration is made with respect to the nature of the LOSC as an international legal system firmly based in a ‘treaty’,3 meaning that it is a binding instru- ment governed by international law. Failure to comply with obligations established in its provisions raises issues concerning state responsibility. The Convention is considered by some authors as the ‘constitution of the oceans’4— a treaty entered into by the unusual number of 168 parties, including the European Union— making it one of the most reputable formal agreements in the field of international law (very close to being considered universal), and one of the most important instruments since the adoption of the United Nations Charter. Having defined the legal nature of the Convention as formal law, the introductory chapter of the book turns to consider an array of international instruments under the heading of ‘agreements that are not treaties’, noting that ‘disagreements may arise as to whether an agreement is formal law or not’. In both cases, variations exist ‘with respect to names, form and substance’. However, a common element is highlighted in relation to the term ‘agree- ment’, whether formal or informal, since it ‘still captures the manifestation of consent to cooperate in a designated way in relation to a particular area’. The studies that follow the introduction clearly show that informal lawmaking has an important role in the establishment of regulatory instruments and provisions concerning many different aspects of the law of the sea. The quest of the authors of this book is to de- termine its proper significance. These studies seek to give an answer to the question of why informal lawmaking matters. That the importance of informal international law is gradually increasing is clearly evi- dent in relation to many different aspects of the law of the sea. As mentioned in the introduction, many examples may be found, one of which— the Food and Agriculture Organization’s regulations to prevent, deter, and eliminate illegal, un- reported and unregulated (IUU) fishing (the International Plan of Action on IUU fishing and the Model Scheme on Port State Measures to Combat IUU Fishing)—i s esteemed as a significant contribution in defining the expectations of the international community con- cerning the behaviour of fishing vessels and of flag states in this field of international law.5 Another of the examples mentioned is the contribution of the International Maritime Organization (IMO), which, in addition to the international conventions celebrated under its auspices, has provided multiple instruments in the form of circulars, guidelines, and recommendations. Why are the developments introduced by informal lawmaking significant? 3 The use of the term ‘treaties’ in the Introduction is a general way to refer to those international legal instru- ments included in the concept of ‘formal law’. 4 See, eg Agustín Blanco Bazán, ‘Jurisdicción penal y Derecho del Mar. Aspectos jurisdiccionales en la prevención y el castigo de actos criminales en la Convención de las Naciones Unidas sobre el Derecho del Mar y el Convenio para la represión de Actos ilícitos contra la seguridad de la navegación marítima’ in Leopoldo MA Godio (ed), El Sistema de Solución de Controversias de la Convención de Naciones Unidas sobre el Derecho del Mar (EUDEBA 2019) 581–8 5. 5 The International Tribunal for the Law of the Sea, in its advisory opinion on the request submitted by the Sub- Regional Fisheries Commission (SRFC), has noted that, although the definition of IUU fishing contained in para- graph 3 of the IPOA-I UU is voluntary, this definition was subsequently incorporated and reaffirmed in Article 1(e) of the Port State Measures Agreement, and also included in the decisions of some regional fisheries management organizations (RFMOs), the national legislation of a number of states, and the law of the European Union. Request for Advisory Opinion Submitted by the Sub- Regional Fisheries Commission (Advisory Opinion) ITLOS Reports 2015, 4, para 92. viii Foreword Several reasons are suggested: • The interaction of informal lawmaking with formal international law, and its possible relevance for the interpretation and application of the provisions of the LOSC. • In the understanding that the Convention is, in some respects, a framework agreement needing further elaboration ‘outside the treaty’,6 as is the case with Part XII, in which references to ‘generally agreed international rules and standards’ are made, meaning that informal lawmaking is further considered relevant for the interpretation and ap- plication of the Convention. • The role of informal lawmaking ‘in creating and sharing expectations around state conduct at sea’. As an example, informal agreements may be used to ‘benchmark’ the content of the ‘diligence’ required in cases where states can be held responsible for failing to exercise ‘due diligence’. • Given the current challenges affecting the adequate governance of the seas and oceans, informal lawmaking may provide the means for better cooperation among states and other stakeholders. Since the content of the book refers to a host of different examples of informal inter- national instruments and provisions, the introduction refers to and describes the elements that provide the context in which informality appears to be relevant in lawmaking. The elements mentioned are: (1) the process of informal lawmaking; (2) the actors inter- vening in informal lawmaking; and (3) the outcome of the process. The Process of Informal Lawmaking Informal international lawmaking, as depicted in the introduction, refers to ‘a process of international cooperation to reach agreements other than treaties between public author- ities’. In other words, the ‘process’ refers to the mechanics, substance, and form of the agree- ments denoted, when reference is made to informal lawmaking. The participation of private actors or international organizations in this context is not essential, even though ‘informal lawmaking as a process allows for relevant non-s tate actors to assemble and share expertise and information, learn more about an issue, and bargain on what standards of behaviour are acceptable’ for addressing a particular issue. The kind of cooperation involved in the process of international informal lawmaking ‘typically entails “norm-s etting or public policy-m aking by public authorities” and on this basis warrants the description of “lawmaking” ’. As explained by the author of the introduc- tion, we are dealing here with the kind of agreements the adoption and implementation of which would affect the incentives and behaviour of states. Different reasons are acknowledged as an encouragement for adopting informal lawmaking, but they are basically summarized in Lipson’s description of ‘informality’, quoted in the introduction, as ‘a device for minimizing the impediments to cooperation, at both the international and the domestic levels’.7 However, as noted by Klein in her 6 Part XII is an example of needing further elaboration ‘outside the treaty’, in which direct or implied references are made in sections 2, 4, and 5 to ‘generally agreed international rules and standards’. 7 Charles Lipson, ‘Why are some International Agreements Informal?’ (1991) 45(5) Intl’l Org 495, 500. Foreword ix introduction, informal lawmaking is increasing due to several factors, including a re- luctance, observed by some scholars, on the part of states to amend the LOSC, as well as a shared feeling of ‘treaty stagnation’ or ‘treaty saturation’. Another factor noted is the appearance, on the international scene, of non- state actors who are increasingly influen- cing the adoption of more ‘inclusive and transparent’ informal agreements to properly take into account their needs. Klein also, correctly, mentions the influence of the current multipolar political dynamics, which have motivated a disinclination, on the part of some states, to commit to global co- operation: a situation that diminishes the probability of achieving binding agreements. Participants in Informal Lawmaking Informal agreements— in contrast to formal treaties, which can only be adopted with the consent of the authorities empowered by the constitution of the contracting states, or by their duly appointed representatives—m ay be adopted by different government officials or agencies, whatever the denomination of the instrument (memorandums of understanding, circulars, ‘gentlemen’s agreements’, codes of conduct, etc.). The importance of the informal agreement rests in the cooperation constituting its object and purpose, which may be strengthened by specifying the behaviour expected from the contracting parties, thereby enhancing their understanding of the object, scope, and extent of their cooperation.8 Also important is the possibility that non-s tate actors may also be engaged in the devel- opment of legal informal instruments establishing cooperative new measures and informa- tion sharing. While states remain necessary entities from the point of view of legitimation and control, the engagement of different actors and stakeholders—s uch as shipping com- panies, seafaring unions, scientific bodies, and conservation groups—m ay be necessary for varied reasons, but authors that refer to non-s tate actors in the context of informal law- making mention the need to resort to multiple sources of complex knowledge and net- working experience ‘beyond what States can shoulder’9. In Klein’s opinion, a core advantage of these informal agreements is the engagement with non- state actors ‘who can positively contribute to information and understandings on which states rely in developing their views on how to deal with a shared matter of concern’, since broad participation by stakeholders ‘enhances good governance through improved transparency, facilitating information- sharing, distributing responsibilities and account- abilities, and enhancing cooperation’. 8 Klein gives several examples of informal agreements adopted by state authorities not empowered to enter into formal agreements, who have signed instruments to enhance cooperation in different areas of mutual concern: for example, the two legally non-b inding memoranda of understanding signed by the United States Defense Department and the Chinese Ministry of National Defense, ‘to follow in the event of air or maritime encounters, as well as establishing a notification mechanism’. She also mentions the ‘arrangement’ of the Australian Border Force with the Indonesian Maritime Security Agency ‘to improve cooperation in addressing shared maritime security concerns’. 9 Klein quotes Joost Pauwelyn Ramses A. Wessel and Jan Wouters, ‘When Structures become Shackles: Stagnation and Dynamics in International Lawmaking’ (2014) 25(3) European JIL 733, 742 (citations omitted): ‘This diverse network society has given rise to new actors and new forms or processes of cooperation, other than those traditionally recognized by international law. The State remains a pivotal entity of interest aggregation, legitim- ation and control. Yet, it is supplemented, assisted, corrected, and continuously challenged by a variety of other actors . . . Problem solving in a complex knowledge/n etwork society will require action beyond what States can shoulder. It needs pragmatic deliberation involving multiple sources of knowledge, experience and control.’
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