1. Introduction
1.1. The United Nations Convention on the Law of the Sea
In 1973, the United Nations (UN) General Assembly (UNGA) set States the ambitious task of adopting a single convention ‘dealing with all matters relating to the law of the sea … bearing in mind that the problems of ocean space are closely interrelated and need to be considered as a whole’.Footnote 1 This was something two previous UN Conferences had failed to achieve, but a third Conference (UNCLOS III) was convened and succeeded, producing the UN Convention on the Law of the Sea (LOSC or Convention).Footnote 2 At the final session, the President of UNCLOS III, Tommy Koh, claimed that the LOSC was ‘a constitution for the oceans which will stand the test of time’.Footnote 3 Ever since, this claim has been widely and routinely repeated by States,Footnote 4 the European Union (EU),Footnote 5 UN Secretaries-General (UNSG),Footnote 6 the International Maritime Organization (IMO),Footnote 7 in international courts and tribunalsFootnote 8 and by some leading scholars on the law of the sea.Footnote 9
The LOSC is an impressive convention. It is comprised of 320 Articles, 17 Parts, nine Annexes and two Implementing Agreements in force, with a third recently adopted on 19 June 2023—the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction, commonly referred to as the BBNJ Agreement.Footnote 10 The LOSC governs a range of activities and uses of the sea, from fixing the maximum breadth of the territorial sea to 12 nautical miles (nm) (a crucial issue which had plagued the discipline for decades prior) through to the codification of navigational rights and freedoms, and from the protection and preservation of the marine environment to the regulation of marine scientific research. It created (what were at the time) new legal regimes that have since become permanent fixtures in the law of the sea.Footnote 11 It established bodies competent to address several aspects of the LOSC, including the Commission on the Limits of the Continental Shelf, the International Seabed Authority and the International Tribunal for the Law of the Sea (ITLOS). It also devised a compulsory dispute settlement procedure for disputes arising over matters covered by the LOSC—which is, quite rightly, regarded as a uniquely ‘remarkable’ contribution to the peaceful order of our oceans.Footnote 12
Chief among the methods employed at UNCLOS III was the ‘package deal approach’,Footnote 13 meaning that a single convention was negotiated and presented for ratification as a whole and States were denied the opportunity to ratify parts of the agreed text selectively. As a result, negotiations were conducted in a way which sought to achieve broad consensus and compromise across many competing interests.Footnote 14 However, this approach caused difficulties for ratification. The LOSC now enjoys broad international acceptance with 170 States Parties, but it took 12 years for it to enter into force. Many industrialised States expressed reluctance to ratify the Convention due to concerns that the provisions of Part XI LOSC relating to deep seabed mining were overly restrictive and unfavourable to market economies. A 1994 Implementation Agreement essentially rewriting Part XI removed this barrier to ratification,Footnote 15 finally allowing the Convention to enter into force.Footnote 16
1.2. Ensuring the LOSC's continued relevance and effectiveness
Anything which claims to be a comprehensive legal framework covering over 70 per cent of the planet can be nothing other than influential. However, this statistic gives pause for thought. How can a single treaty, however extensive, truly address the full range of activities and uses of the oceans? And with it now being 42 years since the LOSC was opened for signature and 30 years since its entry into force, the question whether it remains fit for purpose today inevitably emerges.Footnote 17 It is becoming increasingly clear that new uses of the oceans, innovations in maritime technology and modern demands of ocean governance are beginning to put the LOSC under strain.Footnote 18 This article seeks to address these questions in examining the claim that the Convention is a living treaty. As has been sagely warned: ‘The continued relevance of the LOSC will first and foremost be determined by its capacity to deal with new developments relating to the oceans and human activities taking place in them.’Footnote 19 This is because the LOSC is highly unlikely to be renegotiated and even less likely to be amended following negotiations, given that what might constitute an improvement in one area of the LOSC for one State would doubtless be considered an unravelling of the Convention for another.
1.3. The argument
The LOSC is here to stay and given it is widely ratified and accepted in practice, the goal is clear: to integrate novel considerations into its framework where appropriate and possible and, in doing so, live up to another long-held claim that it is a ‘living treaty’ capable of addressing novel circumstances. This article argues that greater clarity in the characterisation of the LOSC is needed to achieve this. Section 2 challenges the claim that the LOSC is a ‘constitution’ and questions the analogy's effectiveness as an analytical tool.Footnote 20 It questions the usefulness of analogising treaties to constitutions in international law generally, and it argues that treating the LOSC as a constitution is not only inaccurate, but also potentially hinders helpful approaches to the interpretation of the Convention and its integration with other areas of international law and encourages unhelpful ones. Instead of being perceived as the so-called ‘constitution for the oceans’, it is better to view the LOSC simply as one of the legal elements which, together, are constitutive of the modern law of the sea. The article demonstrates the extent to which the continued efficacy of the LOSC hinges on regime interaction and systemic treaty interpretation.Footnote 21 Such techniques depend, however, on developing an approach to the law of the sea of the kind set out in this article rather than as a constitutional framework premised on supremacies and hierarchies.
The article argues that it is equally important to identify the other hitherto hidden matrix of factors and considerations which, while extraneous to the so-called constitution, make an impact on its interpretation (Section 3) and interaction with other areas of international law (Section 4). It is shown that, in practice, it is this broader matrix of factors outside the four corners of the LOSC—rather than anything inherently ‘constitutional’ within it—which can enable it to respond to new demands and incorporate innovative approaches to the law of the sea. These wider factors can breathe new life into the Convention, rendering it a living treaty capable of responding to change and integrating more fully with other fields of international law. The Conclusion (Section 5) reviews some of the broader lessons to be learned for both the law of the sea and international law. It argues that achieving harmony across international law, in the face of its increasing specialisation, means abandoning constitutional aspirations—whether real or perceived—of any element of any one of its specialised regimes.
2. Testing the constitutional analogy
2.1. Nature of the claim
There are few absolute claims that the LOSC is a genuine legal constitution—reflective of the doubt surrounding the characterisation. Nevertheless, the analogy continues to be employed both in a political sense and as an analytical tool to describe the framework role that the LOSC plays for the law of the sea. In 1982, Ambassador Koh, it might be suggested, had good reason for insisting that a text which had been negotiated for years finally reflected a ‘constitution for the oceans’. At the time of his statement, the LOSC had been opened for signature and some 60 States needed to ratify it before it could enter into force. In truth, pessimism was in the air: not all were happy with the text. As explained above, it took radical change in the form of the 1994 Implementation Agreement to prompt States to ratify the LOSC. The claim that the LOSC is a constitution for the oceans continues to be repeated today, even by States who have already ratified the LOSC, and not only in the context of encouraging accession by those few States yet to do so.
The constitutional claim can also be explained as a response to threats to the LOSC's continuing authority. It has become more prominent as some States have begun to push the envelope of what is permissible under the Convention or appeal to alternative bases to justify their behaviour (such as historic rights or local customary practices). In a Meeting of States Parties to the LOSC in July 2022 it was noted that:
Many delegations and a group of States took the opportunity to reaffirm the enduring role of the Convention as a ‘constitution for the oceans’ establishing the legal framework within which all activities in the oceans and seas must be carried out. The universal character of the Convention was underscored, with some delegations emphasizing that many of its provisions codified customary international law.Footnote 22
On the fortieth anniversary of its adoption later that year the UNSG emphasised that ‘[t]he legal framework for all activities in the oceans and seas is well established in the United Nations Convention on the Law of the Sea, the world's “constitution for the oceans”’.Footnote 23 These sentiments were widely repeated in the UNGA sessions of 8–9 December 2022 celebrating the fortieth anniversary.Footnote 24 The ‘universal character’ of the LOSC has also been endorsed in several UNGA resolutions.Footnote 25
The UN Security Council (UNSC) has also previously ‘reaffirm[ed] that international law, as reflected in [the LOSC], sets out the legal framework within which all activities in the oceans and seas must be carried out’.Footnote 26 However, reflecting the increasing pressure that the LOSC is under, while this phrase was eventually included in UNSC Resolution 2634 in 2022, China questioned its utility, finding it necessary to state that:
The Convention is not the entirety of international law. The eighth preambular paragraph of the Convention clearly stipulates that matters not regulated by the Convention continue to be governed by the rules and principles of general international law. That shows clearly that the Convention itself recognizes that its scope of application is limited. It does not, and cannot possibly, regulate all maritime issues. … With human activities increasing in the ocean, the international community needs to develop new rules for the law of the sea.Footnote 27
Paradoxically, rather than reflecting an assured position, claims that the LOSC continues to provide a comprehensive stable framework for the law of the sea should be read in the context that they are employed: in response to increasing challenges precisely to this idea. While some find solace in the constitutional claim as a reassertion of the LOSC's influence, this article shows that this provides a false sense of security and that a better approach should be adopted. For a start, as the following Section 2.2 shows, the LOSC cannot correctly be described as a constitution. Further, even where the LOSC is merely compared to, rather than claimed to be, a constitution, this comparison has its limits: Section 2.3 questions whether these claimed resemblances are constitutional and Section 2.4 doubts that treaties can obtain constitutional status in international law generally.
2.2. Core features of constitutions
While there is no single agreed definition of a constitution, it is agreed that, at a minimum, constitutions establish a legal order,Footnote 28 introduce the structural rules of the legal system and allocate the powers and duties of subjects and institutions.Footnote 29 Consequently, constitutions are more familiar in the municipal context, where they perform a foundational role within the legal system and the governance of the State.Footnote 30 This is the so-called ‘thin’ definition of a constitution as establishing the legal order of a given system of governance.Footnote 31
The ‘thick’ approach is broader.Footnote 32 Raz identified seven elements which must be present.Footnote 33 First, genuine constitutions must do everything that the thin approach does but a second, additional requirement is that they are stable and a period of constitutional stability is generated by them. Third, they are founded by one or more written documents. Fourth, constitutional laws are superior to other laws and conflicting laws are invalidated. Fifth, they are justiciable; that is, courts can decide upon the constitutionality of subjects’ behaviour and can determine that an act is unconstitutional and without legal validity. Sixth, they are entrenched in the legal system, purposely difficult to amend and even harder to revoke. Seventh, a constitution's provisions should ‘include principles of government … that are generally held to express the common beliefs of the population about the way their society should be governed’.Footnote 34
Undoubtedly, the LOSC possesses some of the additional features required by the thick definition. Its provisions reflect common approaches among States as to how the ocean should be governed. The LOSC is now entrenched, its formal amendment mechanism is restrictive and States have little appetite to unravel the package of tradeoffs accomplished in UNCLOS III.Footnote 35 This has resulted in a period of relative legal stability. Many of its provisions have attained customary status and this will only increase. The LOSC is also justiciable: it created its own tribunal and its provisions are frequently the subject of inter-State litigation.
The LOSC and its implementing agreements are foundational legal documents of the modern law of the sea. However, the LOSC does not possess two of the most essential constitutional elements: it neither provides for a constitutional structure of superior laws with invalidating effects, nor can it be said that the LOSC establishes the legal order of the sea. It is not a constitution reflecting a municipal kind of legal architecture according to which other norms can be invalidated on the grounds of them being unconstitutional. Instead, the LOSC is better thought of as one (albeit crucial) element in understanding the applicable law.
The sources of the law of the sea extend beyond the LOSC and include a variety of customary norms (not only those codified by the LOSC), other multilateral and bilateral international treaties,Footnote 36 resolutions adopted by UN bodiesFootnote 37 and an ever-growing body of soft laws and guidance that are issued by specialised organisations.Footnote 38 For example, the law applicable to armed conflicts at sea is contained in the customary law of armed force in international law and in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (San Remo Manual);Footnote 39 marine biodiversity is governed by the UN Convention on Biological Diversity;Footnote 40 and the protection of underwater heritage is addressed in the 2001 UN Educational, Scientific and Cultural Organization Convention on the Protection of the Underwater Cultural Heritage.Footnote 41 It is not that the LOSC has nothing to say on these matters, but that more exact, contemporary and detailed guidance on the applicable law is provided elsewhere and shapes the understanding of States’ obligations under the LOSC.
The LOSC does provide a framework within which these other sources apply, but technically they do not owe their existence to the LOSC, although it can be seen to have had a considerable impact on their content, just as the LOSC itself was once shaped by norms, customary or otherwise, which pre-dated it.
2.3. The LOSC's resemblance to a constitution
In the absence of the core elements of a constitution, the constitutional analogy relies more upon the identification of other features of the LOSC which merely resemble a constitution.Footnote 42 For example, Churchill, Lowe and Sander, in their treatise on the law of the sea, conclude that:
Many of the features of the Convention bear out [its description as a constitution]: its comprehensive scope; its framework nature in relation to many issues; its near-universal application, with 85 per cent of UN members being parties, and those that are not parties being bound by many of its provisions on the basis of customary international law; its generally superior status to other sources of the law of the sea; the difficulty of its formal amendment; and, finally, its considerable flexibility which has permitted its development and adaptation to changing circumstances.Footnote 43
Others have reached similar conclusions for similar reasons. Scott observes that the LOSC also generates a ‘system of governance’, establishes bodies and organs and provides for a relatively comprehensive system of compulsory dispute settlement.Footnote 44 She also notes that constitutions emerge from a ‘constitutional moment’—i.e. they emerge from struggle and chaos to establish a comprehensive system of order and legality. Scott concludes that this characterises the generation and effects of the LOSC, which resolved many intractable issues which had long been the cause of much contention among States.
However, are these features exclusively constitutional in nature? First, as concerns the comprehensiveness of the LOSC, Section 2.2 noted that the law of the sea also stems from other sources of law. Furthermore, it is not obvious that comprehensiveness is distinctly constitutional. Granted, constitutions establish a legal system, but this does not necessarily imply substantive comprehensiveness of the kind that the LOSC's constitutional claim seems to assert.Footnote 45
Second, as concerns the LOSC's universality, it enjoys broad ratification and incorporates many customary rules which are binding on all States, not only States Parties. Owing to its significance, the LOSC has also generated customary laws of the sea. States and international courts and tribunals consider that many of its provisions reflect customary law, and this shows no signs of abating.Footnote 46 It goes without saying, however, that the universality of customary norms finds its basis in general international law and not the LOSC. In any event, the real benefit of universality is not the rigid and dogmatic application of the provisions of a text. More meaningful universality and the longevity of the LOSC can, instead, be found by developing an approach centred less on the constitutionality of a given text, and more on developing an understanding of the legal principles which were incorporated into it. These ideas are explained in Section 4.
Third, the claim that the LOSC is ‘generally superior to other sources of the law of the sea’ is accurate, though considerably weaker than the superiority which genuine constitutions have over other norms in a domestic legal system. Article 311(2) LOSC states that the Convention ‘shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention’.Footnote 47 This is no article of superior effectFootnote 48 and the LOSC has been disapplied where necessary in practice. The LOSC is a peacetime treaty, meaning that it does not apply during an armed conflict. The law of naval armed conflict applies instead, being the customary principles of international humanitarian law, which the San Remo Manual is considered to reflect.
Moreover, jus cogens norms permit no derogation and States are required to cooperate to bring to an end any serious derogation from these. This should mean that the LOSC would have to be suspended from operation in cases where its provisions prevent or impede compliance with such norms. Slavery and torture, for example, can occur just as much at sea as they can on land, yet the LOSC only addresses the first of these and merely states that ‘[e]very State shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag’.Footnote 49 The obligation is much wider than that: States have an obligation to cooperate to end slavery and torture wherever they find it, on board both vessels that fly their flag and those that do not. Should a breach of a jus cogens norm be suspected, then the principle of the exclusive jurisdiction of the flag State over vessels which fly their flagFootnote 50 would need to be disapplied. Indeed, the navigational freedoms of the suspected vessel, albeit clearly granted by the LOSC, would also need to be disapplied to permit third States to board, inspect and take any necessary action against the vessel and those individuals involved.
2.4. Treaties as constitutions under international law
A more helpful use of the constitutional analogy in the international context has focused not on individual treaties themselves but, rather, on the broader international legal system. A body of literature has developed the concept of an emerging ‘international constitutional order’,Footnote 51 but it is quite another thing to claim that a particular treaty is a constitution.Footnote 52 This is because the variety of the sources of international law makes it hard to identify where a constitutional document could come from. International conventions bind only those States that are party to them: how, then, can a single treaty be a constitution with universal application?Footnote 53 Even if all States agree to be bound by such a constitution, how could this apply to emerging States or indeed all subjects of international law in the same way as constitutions do to all legal persons in municipal systems? Meanwhile, customary laws are concerned more with substantive rules and less with the technical rules which would be needed to establish a system of governance.
Furthermore, international law is uniquely horizontal in nature without a system of governance of the kind constituted by national constitutions. In such a decentralised legal order, who has the authority to establish a constitution? In the sense that a constitution can generally trace its origins to one or more constitutional documents which have been generated between (and typically signed by) representatives of the people (the ruled) and their government (the rulers), who in international law are the ‘people’ and who is the ‘government’? Sir John Laws wrote that ‘the term “constitution” [means] that set of laws which in a sovereign State establish the relationship between the ruler and the ruled’.Footnote 54 Constitutions thus provide the transfer of power from the community to the government and its institutions—classically identified as a social or political ‘contract’.Footnote 55
The idea that a treaty such as the LOSC can be proximate to a constitution might well be true, but it is another thing for it to be one. If we are applying the term ‘constitution’ to signify a foundational document against which the legitimacy or legality of any action can be tested, challenged and ultimately invalidated, then there is little scope for constitutions in international law as it is currently conceived. The LOSC has quasi-constitutional features in what it proposes to achieve, but not in terms of what it actually is. It is constitutive not in terms of being a constitution-proper, but in terms of setting forth a framework establishing common approaches to the subject and prescribing broad relational and legal objectives that States agree to prosecute collectively.Footnote 56 The LOSC is a framework treaty concerned with technically defining legal concepts and with establishing a broader legal architecture and the general rules and principles that are meant to influence future legal developments—i.e. a common frame of reference.
Framework treaties possess open-textured provisions that impliedly or even expressly delegate clarifying broad, incomplete or purposely vague provisions to subsequent interpretive exercises. The framework nature of the LOSC is often relied on when attempting to explain how it can be responsive to change. The idea is that the LOSC's provisions are capable of being interpreted in dynamic ways to address new challenges, being further developed and clarified through subsequent legal supplements—whether that be through new treaties, implementing agreements or other soft law innovations. A clear example of this is the new BBNJ Agreement. The LOSC established a regime for the regulation of ‘resources’ in ‘the Area’—the seabed in areas beyond national jurisdiction—but limited its application essentially to minerals and not living organisms. This new agreement is designed to provide that which the LOSC did not: a clarification of the rights and duties of States in respect of marine biodiversity and marine genetic resources in areas beyond national jurisdiction. In addition, the LOSC itself identifies international organisations that are ‘competent’ to develop further measures to implement many of its provisions.Footnote 57 The IMO, for example, develops rules and standards which assist States to implement security, environmental and safety standards of international shipping.
It is therefore evident that the LOSC's framework nature does not make it a constitution. In fact, as is explained below, the interpretation of the LOSC and its integration with other areas of international law have relied on the text of the LOSC not possessing constitutional superiority. Section 3 demonstrates this by focusing on the ways that the LOSC has had to be interpreted in dynamic ways to meet new challenges, which has relied as much on the text as it has on other factors which, while not expressly within the LOSC's text, influence its application. Section 4 examines the instances when the law of the sea has needed to integrate approaches from other areas of international law into its body of rules. Again, it shows that complementarity, tolerance and the principles underlying the LOSC guide the process, rather than notions of constitutional superiority.
3. The wider matrix (I): interpreting the LOSC as a ‘living treaty’
3.1. The unsuitability of constitutional and textual approaches
Ultimately, the LOSC is a treaty, and the ordinary rules of interpretation cannot be suspended even if it is described as a constitution. However, these rules are permissive enough for a variety of approaches to be adopted. Yet, approaches to the LOSC's interpretation must be developed with its background, negotiating history, wide coverage, broad acceptance and the difficulty of its amendment in mind. Together, these suggest which approaches are effective and which are not. This section shows that constitutional interpretation and textualism are ill-suited to the LOSC. Instead, what the LOSC has come to rely on is a wealth of hidden factors beyond the text to inform its meaning and which can facilitate its systemic integration within international law. Section 3.2 identifies some of these factors while recognising its purpose is not to examine all such factors but to illustrate their impact in practice. These factors relate to general principles of treaty interpretation but allow for more specific law-of-the-sea reasoning to apply.
Interpretation bears a considerable burden in applying constitutional provisions to new situations. How this is done is the subject of considerable and fierce debate in the municipal context because ‘legitimate interpretation is difficult to distinguish from illegitimate change’.Footnote 58 Consequently, approaches to the interpretation of constitutional texts become polarised. On the one hand is an originalist position: ‘the view that the Constitution should be interpreted to mean what it originally meant’.Footnote 59 On the other is the non-originalist position: the view that the Constitution should be interpreted in light of the meaning of the text today and be responsive to the changes which have taken place since the text was written.Footnote 60 Doubtless these are simplifications, but they avoid wading into an unnecessarily complex issue. Indeed, this is precisely the point: unnecessarily importing ill-defined, disputed and frankly unhelpful approaches from one legal system into another should be avoided.Footnote 61
It is inevitable that a text endowed with apparent constitutional status comes to dominate discussion, scholarship and judicial opinions. However, the provisions of the LOSC simply do not provide all the answers to every maritime issue on their own, and focusing too closely on the text runs the risk of developing unsuitable legal approaches. Understanding the aims of the text sheds light on its meaning: what issue did the text try to solve? Equally important is an understanding of how the words are interpreted and applied in practice. Cognisance of the practical and subsequent effects of a given interpretation informs its appropriateness. Such enquiries may not always be clear or illuminating but, together, they can help to make sense of the law.Footnote 62
Constitutional interpretation, even non-originalist approaches, is bound by what is included in the constitution: interpretation can remedy defects and imply unstated powers, but the constitution provides a limit on what can be accommodated.Footnote 63 The fear is that the constitutional analogy acts as a brake on integrating new and ‘progressive’ approaches to the LOSC where novel solutions may well be needed instead.Footnote 64
Considerably more flexible approaches to interpretation have thus been developed. A textually dogmatic approach is inappropriate for the interpretation of the LOSC. Many of its provisions are intentionally vague and left open to varying interpretations. This was a product not only of the compromises which were needed at UNCLOS III, but also the view that sometimes it was better to agree along broad lines even when agreement could not be found on the specifics.Footnote 65 Thus textualism of the kind employed in the context of constitutions is out of place here and, instead, the LOSC relies upon a host of factors beyond the text for guidance on interpretation. The LOSC is on occasion being interpreted in a dynamic and contextual manner, but this approach needs to be more prevalent and more readily acknowledged. Insisting upon the constitutionality of the LOSC would require constraining such interpretation and returning to a more proper constitutional approach. This would be a mistake.
The constitutional analogy requires that developments in the law of the sea must be seen to have a basis in the LOSC's text, requiring some ingenious interpretations of its provisions in order to retrofit new rules into the Convention. This is not a criticism of this approach; after all, solutions must be found from the available tools. However, all too frequently such interpretation is not followed with the necessary recognition of the expansive and dynamic nature of some of these ingenuities and even less frequent is the admission that some broader rethinking of the existing approaches may well be required. It is better to have an open mind to the many underlying considerations which influence the interpretation and evolution of the LOSC: the matrix of hidden factors beyond the text itself.
3.2. Examples of the influence of wider factors
3.2.1. Continuing effectiveness
Interpretation can help to update the LOSC's dated provisions: again, what matters is a recognition of the considerations that are used to justify this outcome. For example, the arbitral tribunal in the Arctic Sunrise Case interpreted the LOSC's requirement for a ‘visual’ or ‘auditory’ signal to stop to be given to a foreign vessel, before the coastal State can pursue and arrest it, to include very-high-frequency (VHF) radio communication, even though such technology did not exist at the time the provisions were written. The underlying principle is the continuing effectiveness of the LOSC's provisions when their object and purpose can be identified. Here, the objective and purpose of the requirement for a visual or auditory signal to stop is, according to the tribunal, ‘to ensure that the pursued ship is made aware of the pursuit’.Footnote 66 Given that VHF messages are now the standard means of communication at sea, they ‘can fulfil the function of informing the pursued ship’.Footnote 67 Such interpretation permits the result that the purpose of the provision is fulfilled and applied even in a situation not in contemplation when the LOSC was written.
3.2.2. Stability
Discussions of how baselines are affected by rising sea levels clearly demonstrate the importance of taking wider factors into consideration when interpreting the LOSC. Discussions thus far have focused on the terms of the LOSC,Footnote 68 agonising over the meaning of the ‘normal baseline’ defined as the ‘low-water line along the coast as marked on large-scale charts’,Footnote 69 when instead the focus should have been on looking ‘squarely at legal stability [and] … evidence of its expression in States’ actions and pronouncements’.Footnote 70 Only then, as Anggadi suggests, does it become clear that Article 5 LOSC has been applied by States in ways that are compatible with the view that baselines can be fixed in their current form and do not have to ambulate landward as sea levels rise. In truth, the text is open to a variety of interpretive approaches, but their appropriateness is informed by other factors.
The International Law Association (ILA) Committee on International Law and Sea Level Rise and the Study Group of the International Law Commission examining this issue suggest that such interpretation is appropriate and attractive in view of legal certainty and stability. In the words of the ILA Committee: ‘The objective of facilitating legal certainty and stability has been at the core of options proposed by the Committee.’Footnote 71 Its 2024 report observed that: ‘States from various regions of the world have connected the meaning of legal stability with the solution of preserving maritime zones by fixing their baselines and the outer limits as they were before the effects of sea level rise.’Footnote 72 Consequently, it ‘recommended that, in view of legal certainty, coastal States deposit with the UN Secretary General information specifying also those baselines and outer limits for which the deposit is not strictly required by the Convention’.Footnote 73 Again, what sheds meaning on the LOSC and makes it more responsive is to be found in materials beyond the so-called constitution itself.
3.2.3. Context
The treatment of islands in international law also demonstrates the importance of wider considerations beyond the LOSC. Contextual factors have the same impact on the treatment of islands as the legal provisions themselves.Footnote 74 It is little surprise that Article 121 LOSC has been pored over as much as it has. Paragraph 1 defines an island as ‘a naturally formed area of land, surrounded by water, which is above water at high tide’.Footnote 75 Paragraph 2 raises the stakes: it says that anything which can be described as an ‘island’ is entitled to generate all maritime zones. However, then paragraph 3 says that: ‘Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.’Footnote 76 From these paragraphs it is entirely possible to reach interpretations that are seemingly consistent with the text but contrary to State practice and have little thought for practical implementation. The terms of Article 121 allow considerations of the size, location or importance of an island from a political, maritime security or economic perspective to be overlooked, yet these are important factors influencing how islands are treated in practice.Footnote 77
The text of Article 121 gives the impression that all islands are treated equally, which is not so in practice. The context matters. When it comes to maritime delimitation, for example, the context determines the impact of an island on the course of the final boundary. An island which generates the need for the delimitation in the first place will generally be given greater significance than an island that is merely incidental to a broader delimitation between mainlands.Footnote 78 In the latter scenario is it said that an island is a special or relevant circumstance whose ‘distorting’,Footnote 79 ‘extraneous’Footnote 80 or ‘disproportionate’Footnote 81 effect needs to be ‘eliminated’Footnote 82 from the process. The result is that the courts have altogether ‘ignored the presence of islets, rocks and minor coastal projections’Footnote 83 or, in other cases, have given them a much-reduced effect on the delimitation lineFootnote 84 and have sometimes enclaved them on the other side of the line.Footnote 85 Even when an island generates the delimitation dispute, the context determines its treatment: its relative smaller size or its perceived lesser significance, as compared to an opposing mainland coast, matters. This meant that Malta, for example, was not given the full effect of its entitlement in the delimitation between it and the mainland Libyan coast. The International Court of Justice (ICJ) considered that the geographic context ‘in which the islands of Malta appear as a relatively small feature in a semi-enclosed sea’Footnote 86 required a different method than equidistance to achieve an equitable result. The ICJ, quite remarkably, reasoned that if Malta were Italian territory, then it would be given only some effect in a delimitation between Italy and Libya. However, the Court considered that Malta should not be in a ‘worse position because of its independence’Footnote 87 and so the delimitation line between Malta and Libya had to be south of the median line drawn between Libya and Italy, but north of the median line between Libya and Malta, ‘represent[ing] a shift of around three-quarters of the distance between the two outer parameters’.Footnote 88 A similar contextual treatment of islands occurred in the delimitation between the French islands St Pierre and Miquelon and the Canadian mainland coast, off which they are located. Rather than giving the islands full entitlement to be delimited on the basis of equidistance, the tribunal considered that the disparity in coastal lengths as compared with the massive Canadian coastline and the overall geographic context meant that St Pierre and Miquelon were only given a narrow but long corridor of southward entitlement measuring 10.5 nm wide by 200 nm long.Footnote 89
These cases demonstrate that while Article 121(2) LOSC says that all islands are fully entitled to generate all maritime zones like ‘other land territory’,Footnote 90 in practice the context might require a different result. The geographic context was important in both cases but so were the political statuses of the islands. The Malta delimitation shows that having the status of a sovereign island State can influence the course of the final boundary—even if this is to be assessed against other factors, such as the geographic context of the area concerned. The St Pierre and Miquelon delimitation might then have produced a different result giving the islands more entitlement, had these not been dependent islands. There are other cases involving dependent islands where it might also be questioned whether they would have ended up with such diminutive entitlements were they island States instead—including the Channel Islands which are dependent island territories of the United Kingdom (UK) and which ended up with a mere 12 nm enclave in the broader delimitation between the coastlines of the UK and France.Footnote 91
This differentiation in treatment depending on the context is not inherently problematic since a more contextually sympathetic law would be more responsive to the mischief that is attempting to be remedied, i.e. in the case of delimitation the geographic, political and economic contextual factors are often determinative of the outcome.Footnote 92 What is problematic, however, is the lack of recognition that what is often needed is a much more holistic approach to the interpretation of the LOSC—an approach which includes factors beyond those included in the text and beyond those envisioned by the drafters.
4. The wider matrix (II): interactions between the law of the sea and other areas of international law
4.1. The unsuitability of constitutional analogies
The role of a wider matrix of factors and considerations is just as important when effectively integrating other areas of international law with the law of the sea as it is in the interpretation of the LOSC. International law is increasingly becoming more specialised in nature. Various regulatory regimes proliferate the legal system, specialised organisations regulate specific areas of law and practice, and specialised courts hear cases involving specialised disputes. This has given rise to fears of regime collision and the fragmentation of international law:
Collisions between legal norms are merely a mirror of the strategies followed by new collective actors within international relations, who pursue power-driven ‘special interests’ without reference to a common interest and give rise to drastic ‘policy conflicts’.Footnote 93
Attempts have been made to allay these concerns. Global legal pluralists try to explain that regime collisions can be, and are, avoided in practice.Footnote 94 Essentially, no one benefits from reasserting the supremacy of one regime over the other, as this encourages rather than mitigates collisions. ‘Rather than secure the unity of international law, future endeavors need to be restricted to achieve weak compatibility between the fragments.’Footnote 95 Toleration and complementarity are key to systemic integration in international law.Footnote 96
Yet characterising the law of the sea as being subject to some distinct constitutional arrangement encourages a self-referential kind of system in which developments of the law must be internally justified. This is a limited view and has the potential to miss opportunities to develop the law in better ways. The law of the sea might very well be improved by integrating better approaches to the concepts it adopts that emanate from other legal regimes and have no internal basis.Footnote 97 For example, the concept of jurisdiction is approached in different ways in the various fields of international law. A functional model of jurisdiction is found in the field of human rights law and it is being transposed into the law of the sea, but with questionable results given that the law of the sea is zonally structured.Footnote 98 Again, this suggests that it would be better to develop an approach that more easily permits cross-fertilisation between these models, as opposed to insisting upon the constitutionality of one of them. This is required if a genuinely effective approach to the systemic interpretation of the LOSC with other regimes is to be developed.
The importance of a cross-fertilisation approach is apparent where human rights law, environmental law and the law of the sea overlap in the context of sea level rise. A law of the sea-based solution which does not accommodate human rights law will be impoverished compared to a solution which does and vice versa. In this context, States’ human rights obligations ought to be developed in tandem with, or at least with cognisance of, their obligations under the law of the sea. For instance, it cannot be that a State is liable in human rights law for failing to defend its coastlines through artificial construction and protect its coastal populations from rising sea levels,Footnote 99 while at the same time being liable for the environmental damage such construction activity would inevitably cause, and simultaneously being denied the possibility of claiming that the feature is ‘naturally formed’ under the law of the sea.Footnote 100 In truth, the law of the sea has much to learn from human rights law and environmental law, and vice versa. Are these interactions really helped by asserting the constitutionality of a text applicable to just one of these regimes?
Constitutions demand superiority and hierarchical structures. Constitutional norms are given superior effect in a legal system: when other norms clash with them, they are invalidated. Subsequent norms find their validity only by reference to their constitutional adherence, so subsequent norms are developed in a way to avoid clashing with constitutional norms. This is neither consistent with the way international law develops, nor helpful in explaining developments in the law of the sea; rather, it challenges the logic of systemic treaty interpretation.
4.2. Development through interaction and complementarity
4.2.1. The LOSC and the IMO
The LOSC expressly establishes forms of hierarchical relationships with other legal sources. For example, it refers to ‘international organizations’ which are ‘competent’ or ‘appropriate’ to assist States Parties in implementing the LOSC.Footnote 101 In relation to shipping, the designation of sea lanes, traffic separation schemes and marine pollution, the relevant ‘competent international organization’ refers to the IMO, though this is not expressly stated in the LOSC. As Beckman and Sun observe:
[The LOSC] is widely viewed as a ‘constitutive’ instrument that provides a legal framework that is being filled in, rounded out and complemented by existing and subsequently enacted international agreements and customary international law. The International Maritime Organization (IMO) is the preeminent international organization with competence to establish international rules and standards for the safety, security and environmental performance of international shipping. In other words, on matters relating to international shipping, [the LOSC] outlines the rights and obligations of States parties in various maritime zones that must be exercised and fulfilled through implementation instruments under the auspices of IMO.Footnote 102
The LOSC provides the framework rules which are then clarified through other treaties, soft law, guidelines and codes adopted by other bodies. It is worth remembering that the IMO predates the LOSC and, arguably, the Convention incorporated rather than established the IMO's mandate on shipping matters. Ultimately, the IMO is at the behest of States, not the LOSC. As long as it develops ‘measures to improve the safety and security of international shipping and to prevent pollution from ships’, it will be legitimate.Footnote 103 This is its mandate and in fulfilling this it has, at times, ‘expanded beyond what is explicitly stipulated in LOSC’.Footnote 104
Again, to characterise these organisations as implementing the LOSC is something of a misnomer. If States want to develop laws and codes under the auspices of the IMO beyond the role envisaged by the LOSC, they can. The constitutional analogy thus does little to explain the relationship between the LOSC and development of the law of the sea even by so-called ‘competent organizations’ empowered by the LOSC—despite such an arrangement initially appearing to provide a strong basis for a claim of constitutionality.
4.2.2. Managing ‘collisions’ with the LOSC
The LOSC contains provisions addressing ‘collisions’ between its provisions and those of other international conventions. Article 237 specifically concerns the compatibility of the LOSC with obligations arising from other conventions relating to the protection and preservation of the marine environment, but it is Article 311 which governs the LOSC's relationship with other conventions more generally. Article 311(2) provides that:
This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.Footnote 105
This applies therefore both to conventions which predate the LOSC and those created after its entry into force. Article 311(3) states that:
Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention … provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.Footnote 106
The Tribunal in the South China Sea Arbitration stated that Article 311 also ‘applies equally to the interaction of the Convention with other norms of international law, such as historic rights’, not only those found in ‘agreements’.Footnote 107
The interpretive approach taken to Article 311 resembles the approach specified in Article 293(1), which states that: ‘A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.’Footnote 108 Thus, rather than questioning the constitutional superiority of the LOSC, the enquiry is reframed, asking whether the particular norm is compatible with it.
The arbitral tribunal in the Arctic Sunrise Case observed that Articles 293 and 311 mean that to ‘interpret and apply particular provisions of the Convention, it may be necessary for a tribunal to resort to foundational or secondary rules of general international law’.Footnote 109 Further, ‘[i]n the case of some broadly worded or general provisions, it may also be necessary to rely on primary rules of international law other than the Convention’.Footnote 110 Thus Article 293 should not be seen as providing an additional basis of jurisdiction, but rather as permitting courts to have recourse to other international laws that are not incompatible with the LOSC.Footnote 111 The BBNJ Agreement reflects this approach, with Article 5 providing that: ‘This Agreement shall be interpreted and applied in the context of and in a manner consistent with the Convention.’Footnote 112
4.2.3. The pursuit of ‘compatibility’
Having recourse to ‘compatible norms’ meant to the tribunal in the Arctic Sunrise Case that it was able to ‘have regard to general international law in relation to human rights in order to determine whether law enforcement action’ against the vessel and individuals onboard ‘was reasonable and proportionate’.Footnote 113 It thus held that it could ‘have regard to the extent necessary to rules of customary international law, including international human rights standards, not incompatible with the Convention, in order to assist in the interpretation and application of the Convention's provisions’.Footnote 114 The basis for arrest involved weighing up the right of the protestors to scale the oil rig and the right of the State to protect and defend it from criminal damage. Complementarity meant, according to the tribunal, that ‘[t]he right to protest is not without its limitations, and when the protest occurs at sea its limitations are defined, inter alia, by the law of the sea’.Footnote 115 This in turn meant that it needed to be weighed against the principle that the seas ‘shall be reserved for peaceful purposes’ only,Footnote 116 as well as the sovereign right of the State to establish and use installations for the exploitation of its natural resources.Footnote 117 Russia had a valid basis to pursue and arrest the individuals involved, provided this was done in a manner consistent with the right of hot pursuit, but the fact that the pursuit was not continuous meant that it was not.Footnote 118 By taking this approach, the tribunal absolved itself of the task of considering the reasonableness, necessity and proportionality of the boarding, seizure and detention of the vessel and the individuals involved under compatible human rights standards: once the pursuit was illegal, everything that flowed from it was too.Footnote 119
In M/V ‘SAIGA’ No 2, ITLOS interpreted compatibility as meaning that it could consider general international law requiring uses of force to be necessary and proportionate when interpreting the LOSC's provisions on the arrest of vessels.Footnote 120 It observed that ‘[c]onsiderations of humanity must apply in the law of the sea, as they do in other areas of international law’.Footnote 121 It thus held that it is only after an auditory or visual signal to stop that action can be taken (such as firing shots), and force can only be used when these actions fail, ‘as a last resort’.Footnote 122 Even in the latter scenario, ‘appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered’.Footnote 123 These principles have since been reaffirmed and applied,Footnote 124 including by the tribunal in The Duzgit Integrity Arbitration, which further developed the rule, holding that the principles of necessity and proportionality ‘not only apply in cases where States resort to force, but to all measures of law enforcement’.Footnote 125
The constitutional analogy does not fit with the predominant approach to managing these interactions, which can be characterised more as an attempt to explain their complementarity with the LOSC rather than an assertion of its constitutional superiority. This is true even where subsequent agreements have developed the LOSC in ways which find little basis in its text, and even when some of these developments are specifically designed to overcome its provisions.Footnote 126 The justification for this approach is that these developments put flesh on the bones of the LOSC, they are not incompatible with it and they implement it better than a straightforward application of the provisions of the Convention could.Footnote 127
It is not constitutional superiority but the complementarity-based approach to norms competing with the LOSC that is shown in the legal developments relating to the protection and preservation of the marine environment. It is now widely thought that the approach of the LOSC to the environment ‘is gradually changing through regime interaction fuelled by subsequent practice’.Footnote 128 As Redgwell explains, ‘legal responses must and have extended beyond the LOSC in addressing climate change impacts on the oceans’.Footnote 129 These include development by subsequent State practice, incorporation by reference to generally accepted international rules and standards and through developing further agreements which now inform interpretations of the broad obligations contained in the LOSC. A complementary approach was applied by ITLOS in its recent Advisory Opinion on Climate Change and International Law.Footnote 130 It relied on external rules to inform its interpretation of the LOSC, drawing on the climate change treaty regime including the UN Framework Convention on Climate Change and the Paris Agreement to hold,Footnote 131 inter alia, that ‘pollution of the marine environment’ in the LOSC, which ‘states must take all necessary measures to prevent, reduce and control’, includes human-made greenhouse gas emissions—even though little was known about these at the time the LOSC was drafted.Footnote 132 This evidences reliance on the principle of compatibility when integrating new areas of law into the remit of the LOSC. It shows that it is harmonisation and the principle of compatibility with other laws, rather than ideas of constitutional superiority, which permit the LOSC to incorporate novel or dynamic concepts and allow it to continue to address new challenges.Footnote 133
The same is true in the context of maritime security. The principle of the exclusive jurisdiction of the flag State together with the zonal division of jurisdiction presents a challenge to law enforcement at sea. Consequently, States have concluded agreements to circumvent these jurisdictional hurdles. To suppress the illicit traffic of narcotic drugs and psychotropic substances more effectively, some States have altered their boarding practices by entering into agreements with other States. The UN Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances provides that States can request the authorisation of the flag State to board a suspect vessel and, importantly, the flag State is obliged to ‘respond expeditiously’ to that request.Footnote 134 Article 7 of the Council of Europe Agreement on Illicit Traffic by Sea goes even further: ‘The flag State shall immediately acknowledge receipt of a request for authorisation … and shall communicate a decision thereon as soon as possible and, wherever practicable, within four hours of receipt of the request.’Footnote 135
Going further still, some States have concluded agreements giving a priori authorisation to other States to board vessels flying their flag when suspected of engaging in drug smuggling. Article 16 of the 2003 Caribbean Regional Agreement provides that the agreement ‘constitutes the authorisation’ of the flag State.Footnote 136 Several bilateral agreements provide for similar a priori authorisation.Footnote 137 States have also entered into so-called shiprider agreements, in which law enforcement officials of one State embark on the vessels of another State. As representatives of that State, they can provide real-time authorisation to the host State to board vessels suspected of engaging in illicit activity.Footnote 138
It could, of course, be claimed that these are expressions of the flag State principle—the flag State is, after all, consenting to the terms of the agreement. However, a priori and deemed authorisation represent significant departures from the principle of the exclusive jurisdiction of the flag State in practice: whereas the latter is premised on the rejection of the jurisdiction of other States, the former provides for it and changes the central assumption between the signatory States that their vessels may be subject to the jurisdiction of another signatory State. Whilst States are within their rights to make such agreements, it is clear that ‘implementation’ of the LOSC is a misnomer in some of these cases where what is really going on is its modification to better suit the circumstances.
Whilst it may be acceptable for agreements to build upon the LOSC, what should happen when they provide for less than its provisions? The tribunal in Southern Bluefin Tuna explained that this ‘does not necessarily vacate the obligations imposed by the framework convention upon the parties to the implementing convention’.Footnote 139 In other words, the LOSC continues to apply simultaneously with any derogating provision of another agreement. Again, this lack of an invalidating effect provides yet more evidence that the LOSC cannot be called a constitution.
According to the tribunal in the South China Sea Arbitration, ‘[t]he Convention does not include any express provisions preserving or protecting historic rights that are at variance with the Convention’.Footnote 140 Historic rights in general are permitted, just not those deemed to be ‘at variance’ with the LOSC. In that case, China's historic claim to swathes of sea was held to be incompatible with the LOSC's division of jurisdiction at sea.Footnote 141 The tribunal held that ‘the Convention supersedes earlier rights and agreements to the extent of any incompatibility. The Convention is comprehensive in setting out the nature of the exclusive economic zone and continental shelf and the rights of other States within those zones.’Footnote 142 Hence, ‘[i]nsofar as China's relevant rights comprise a claim to historic rights to living and non-living resources within the “nine-dash line”, partially in areas that would otherwise comprise the exclusive economic zone or continental shelf of the Philippines’, the tribunal could not agree that these were preserved following the LOSC's entry into force.Footnote 143
This again illustrates that the LOSC does not have an invalidating effect on competing legal bases when they provide for either more or less than the Convention. Other viable legal bases are not automatically invalid, but if their substance is deemed to be incompatible with the LOSC they will be deemed without effect in practice. However, it is up to other States to deem an interpretation or behaviour as incompatible with the LOSC or for such an issue to be the subject of litigation so that a court or tribunal can make such a determination. Even then, this relies on the delinquent to drop their delinquency or for others to be motivated enough to seek its accountability—this is not guaranteed, as demonstrated by China still retaining their historic rights claims even after a tribunal has concluded that they are ‘incompatible’ with the LOSC. Simply put, the LOSC does not have an automatic invalidating power and it cannot rely on a constitutional court to invalidate an incompatible norm.
In sum, broader international legal norms and principles have been integrated into the LOSC's framework through the concept of compatibility. This illustrates both the importance of wider factors in the development of the law of the sea, but also that something other than the LOSC determines the legitimacy or the importance of these factors. This is the focus of the Conclusion.
5. Conclusion: lessons for a living LOSC
Sections 3 and 4 have demonstrated that the interpretation of the LOSC, and its interaction with other areas of international law, is informed by a wider matrix of factors and considerations. These are equally constitutive of the law of the sea. However, the inevitable question emerges: what determines the legitimacy of these wider considerations? What determines whether a norm found in another area of international law is compatible with the LOSC, or not? As was seen in Section 4, many of these norms have been integrated into the law of the sea, not because the LOSC's provisions provide for it, but because their application must be consistent with that external norm. The legal basis for these norms is external to the LOSC itself and from other areas of international law. It is not enough to say that compatibility means consistency with the LOSC's text alone. As shown in Section 3, there might well be more than one viable approach to the interpretation of the LOSC. When deciding between two equally viable interpretations, what determines which is best?
Clearly, there are deeper, hidden principles guiding these determinations, which play an even greater role in formative moments. This is not surprising when the text of the LOSC provides little guidance, and thus when new issues arise for clarification, attention turns to such things as the meaning and principles underlying the text. Subsection 5.1 seeks to shed light on these fundamental guiding principles and show how they can continue to guide responses to new challenges in the law of the sea. Subsection 5.2 reflects on the broader lessons of this article for considering treaties as constitutions for international law.
5.1. Guiding principles and values
Phrases like ‘object and purpose’ and ‘compatibility with the LOSC’ are essentially code for: the LOSC reflects values and underlying ideas on how to apply international law to the sea and while these may at times be imperfectly captured in its provisions, from them the best solution can still be identified.Footnote 144 These values do not need to be shackled by any attempt at their textual translation. When thought of as such, it becomes clear just how much the claim that the LOSC is the constitution fails to grasp how much more to the life of the law of the sea there is—and needs to be. This subsection turns first to the underlying principles that might be discerned from Section 3 (interpretation) and then to those from Section 4 (regime interaction) and analyses how these can continue to be instructive for the development of the law.
5.1.1. Lessons from interpretation
As shown above, purposive interpretation is key to the LOSC's endurance. It is important to prioritise substance over form, to peer behind the terms of a provision and question its meaning: what is the real issue that States sought to address? For example, the requirement for an ‘auditory or visual signal’ to stop in hot pursuit is essentially a requirement for the pursuing State to communicate validly with the pursued vessel.
This is significant as concerns the question of how to treat maritime autonomous vehicles (MAVs). These do not have a physical crew on board and may well be operated across jurisdictional frontiers and potentially from great distances. The provisions of the LOSC do little to clarify the responsibilities of MAVs and the jurisdictional competences of coastal States in this context—many of its provisions assume a resident crew onboard.Footnote 145 Giving evidence to the House of Lords’ Inquiry, Commander Tuckett of the British Royal Navy explained that one of the key aims of the LOSC:
is to provide for freedom of navigation and to demonstrate accountability for vessels operating under the principle of the freedom of navigation. Those principles do not change because the technology has changed. We just have to make sure that we apply those principles to our new technology.Footnote 146
This is as clear a call as can be made for a purposive approach—of the kind set out above—to the interpretation of the relevant provisions of the LOSC. This is undoubtedly the way forward when faced with new technologies at sea, wherever possible.Footnote 147
The purposive interpretation of the LOSC has also come to rely on purposes beyond the internal logic of the LOSC's provisions. Interpretive exercises have relied on broader goals of international law, and law in general, for their legitimacy. It is not a surprise that interpretations of the LOSC's provisions on baselines which prioritise values such as legal stability and certainty are increasingly being favoured over the traditional theory which holds that the baseline must ambulate with the actual low-water level.Footnote 148 Other, broader goals might be suggested in this context too. For example, in relation to the interaction between the law of the sea and other areas of law (discussed below) the principle of tolerance and avoiding collisions rules supreme, following the general approach.Footnote 149
Just as purposive interpretation needs to be responsive to the meaning behind the LOSC's provisions, so too must its provisions be interpreted with the potential consequences in mind. Contextually sympathetic interpretations are more attuned to what really matters, the considerations that are significant and the broader situation in which the legal issue arises. It was shown above that the courts consider wider contextual factors when reaching decisions. It is important to understand these factors and be open minded about what they include. Inevitably, geography matters in the law of the sea but so too do non-geographic realities: economic and political factors play an important role and, while the LOSC might not say so, they have an impact in practice. For example, a stricter interpretation of the definition of an island might well be made in the context of a State that occupies disputed features and then builds on them to claim that the definition of an island is satisfied, such that the State is able to generate swathes of maritime entitlement.Footnote 150 In contrast, a more permissive interpretation might be adopted to the question whether a maritime boundary dispute is within ITLOS's jurisdiction when the entitlements are generated from territory that has been improperly decolonised and when its ruling can contribute to the ongoing process of decolonisation.Footnote 151 It would be wrong to say that these decisions are solely motivated by the wider geopolitical context, yet our understanding would be equally impoverished if the latter's influence is not acknowledged. This is nothing new, and the same can be said of any court. Much like the ICJ, as an organ of the UN charged with the overall goal of peace and stability,Footnote 152 must be sympathetic to the broader geopolitical implications of its findings,Footnote 153 so too must courts when dealing with the law of the sea.
5.1.2. Lessons from regime interaction
Similar underlying principles might be learned from interactions between the LOSC and other areas of international law. The experience of its relationship with IMO instruments shows that the following approach works: the LOSC provides the structural framework rules from which more specific rules can be fleshed out. There are limits of course; the regulations must implement the structural rules, rather than undermine them.
Again, the principle of compatibility is key. A broad theme emerges: avoid regime collision and encourage integration. Therefore, when it comes to the treatment of people at sea, it is unsurprising that the law of the sea has not been spared from the rise of human rights law. The LOSC's provisions clearly have an impact on people and so, in practice, the principles of human rights law have an impact on their application. As was explained above, considerations of humanity and the priority to preserve life apply when a State contemplates using force against a vessel, and principles of human rights law make an impact on the entire law enforcement practice at sea, including arrest and detention. However, in the spirit of mutual tolerance, it is not all one way: the law of the sea also has an impact on human rights considerations. The Arctic Sunrise Case emphasised that ‘when the protest occurs at sea its limitations are defined, inter alia, by the law of the sea’.Footnote 154 The sea context necessarily has an impact, and the body of human rights law is modified by it. Compatibility here, then, means applying the law of the sea in a way that is consistent with the core principles from other areas of international law, and vice versa.
This is particularly significant in relation to the emerging question of how to protect human rights at sea. As suggested above, considerations of humanity and principles of human rights law are already being integrated into the law of the sea, but greater clarity is required.Footnote 155 Merely observing mutual toleration between these bodies of law does not clarify the nature of their relationship, but this basic principle is nonetheless instructive of how better legal approaches (and even new instruments) must be developed. It is said that human rights ‘apply at sea as they do on land’,Footnote 156 and whilst this might be true, their manner of application will be considerably different, and legal solutions must be responsive to the sea context. The law of the sea is not passive in the relationship.
But what of treaties that States have agreed to which modify how specific provisions of the LOSC operate in practice? What explains, for instance, the compatibility of agreements which essentially give other States jurisdiction over vessels which should be the exclusive prerogative of another State? This is about more than implementing the duties of the flag State in Article 94 LOSC. It is about States agreeing to circumvent the exclusivity principle in specific contexts where it would lead to more effective outcomes: States have agreed to more efficient law enforcement practices to try to prevent the smuggling of narcotics, suspected piracy and instances of armed robbery at sea. Compatibility here, then, means making a rule of the LOSC more functionally effective.
The principle of the exclusive jurisdiction of the flag State has come to be one of the most disliked aspects of the LOSC today.Footnote 157 Flag States have not universally respected their obligations, as demonstrated by the endemic use of flags of convenience. Tanaka says that the latter have allowed:
foreign shipowners, having very little or virtually no real connection with those States, to register their ships under the flags of those States. The flag of convenience States allow shipowners to evade national taxation and to avoid the qualifications required of crews of their ships. In so doing, flag of convenience States give shipowners an opportunity to reduce crew costs by employing inexpensive labour, while these States receive a registry and an annual fee.Footnote 158
There is nothing stopping States agreeing to additional criteria before States may legitimately flag a vessel (i.e. enhancing the genuine link between the State and the vessel).Footnote 159 Other solutions, such as the non-recognition of the status of a vessel as ‘flagged’ on the basis of the flag State's failure to uphold higher standards onboard their vessels (whether that be human rights, labour standards or environmental compliance), while naturally contentious, might occur—especially if it appeared that a particular rogue nation was exploiting the principle of exclusivity for an illegitimate gain. At this juncture, it is worth reflecting on the considerable speed with which many coastal States acted against Russian-flagged vessels in the wake of the 2022 invasion of Ukraine, varying from seizure to denial of entry.Footnote 160 Non-recognition of the flagged status of ships for broader legal reasons would be a test of compatibility with the LOSC. But much like the way in which the exclusivity principle has been modified for the suppression of illicit activity, the above suggestions would also circumvent the exclusivity principle to lead to more effective outcomes and, similarly, to prevent lawlessness. In fact, that would be the entire point: it would pierce beyond the veil of exclusivity to ensure the application of other international laws and prevent their circumvention.
5.2. Lessons for international law generally
When it comes to written constitutions, the text is given an exalted status. It is this which is the focus of interpretative exercises. Subsequent legal developments are assessed according to whether a basis can be found within the written constitution. The law of the sea does not benefit from the LOSC being regarded in such a way. It benefits, instead, from understanding that other considerations are equally important. As a result, when new concerns emerge and when new uses and resources of the oceans demand solutions that are not provided by the LOSC, the principles it reflects and the matrix of considerations which make an impact on its application may continue to provide guidance.
If there are any broader lessons to be learned, it is simply that the object of any legal exercise should not be to reify texts, but rather to give better effect to the principles which they seek to reflect and the ideas which motivated States to create and ratify the convention in question. Framework treaties require this approach. Ironically, then, what legitimises and ensures their endurance is not insisting upon their supremacy and entrenchment, but rather distilling their real essence, unshackling them from constitutional analogies and understanding that they apply within a broader context: the international legal system. As international law becomes more specialised and more capable of addressing complex issues, systemic treaty interpretation and regime interaction become more important in maintaining its coherence and holisticness. If seminal treaties in particular fields are to contribute to this broader project, approaches of the kind advocated for in relation to the LOSC in this article will be needed. So, while there are temptations to describe other seminal conventions as ‘constitutions’—for example, the Outer Space Treaty,Footnote 161 which has come to be called the ‘Space Constitution’Footnote 162—to ensure their enduring legitimacy and to ensure that they can be used to better develop international law, such descriptions should be avoided.
Acknowledgements
The formative ideas of this article greatly benefitted from the input of participants at the conference on ‘New Horizons: The Future of the United Nations Convention on the Law of the Sea’, held in 2022 by the Australian and New Zealand Society of International Law (ANZSIL) and the Australian National University's (ANU) Centre for International and Public Law. The author is also deeply grateful to Professors Sir Malcolm Evans and Shirley Scott for their invaluable feedback on earlier versions of this article; to the anonymous peer reviewers for their thoughtful and helpful comments; and to the editorial team at the International and Comparative Law Quarterly for their impressive work during the production process.
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