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Change in the Law of the Sea: Context, Mechanisms and Practice de Rozemarijn J. Roland Holst

Change in the Law of the Sea: Context, Mechanisms and Practice: Publications on Ocean Development, cartea 96

Autor Rozemarijn J. Roland Holst
en Limba Engleză Hardback – 21 feb 2022
The oceans provide a vivid illustration of the relationship between an ever-changing context and a formalistic legal framework. The 1982 UN Convention on the Law of the Sea, hailed as one of the greatest achievements of international law-making, is confronted with dramatically different present-day exigencies. Change in the Law of the Sea provides an analysis and synthesis of the mechanisms that allow this ‘old’ treaty to respond to its contemporary context, shining new light not only on how change occurs in international law, but also on how the sources of demand for change are themselves changing.
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Specificații

ISBN-13: 9789004508545
ISBN-10: 9004508546
Dimensiuni: 155 x 235 mm
Greutate: 0.61 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Publications on Ocean Development

Notă biografică

Rozemarijn J. Roland Holst (PhD cum laude 2020, Utrecht University) is Assistant Professor of Public International Law at Utrecht University. She has published articles and book chapters on contemporary challenges in the law of the sea and general international law.

Cuprins

List of Cases

Abbreviations

1The Law of the Sea Amidst Changing Tides
1 Introduction

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

2.2Stability and Change in Treaties

2.3Conceptualising Change


3 Analytical Framework
3.1Law in Context

3.2Mechanisms for Change

3.3Change in Practice


4 Outline


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

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

2.2New Prospects and a New International Economic Order


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

3.2Negotiating Methods: The Consensus Package Deal

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


4 Conclusion


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

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

2.2Sovereign Interest versus Common Interest


2.3A Functional Perception of Sovereignty


2.3.1 Consent to Process of Normative Development

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

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

3.2‘Subject to Other Rules of International Law’


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

4.2Mutual Obligation of ‘Due Regard’

4.3Distributional Mechanisms in the eez: A Mute Provision


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

5.2Balancing Interests on the Outer Continental Shelf


6 Freedom of the High Seas
6.1Due Regard

6.2Supplementing Exclusive Flag State Jurisdiction

6.3A ‘Managed Commons’: Obligations to Cooperate


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

7.2Changes Made by the 1994 Implementing Agreement


8 Conclusion

4Treaty-Based Mechanisms for Change
1 Introduction

2 Formal Change by the States Parties
2.1Formal Amendment Procedures

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

2.2.2 Inter Se Modification by Subsequent Agreement

2.2.3 Other Agreements

2.3Role of the splos


2.4Role of the unga


3 Change through unclos Institutions
3.1The clcs

3.2The isa
3.2.1 The Institutional Setup of the isa

3.2.2 The isa at a Crossroads


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

3.3.2 The Role of the itlos

3.3.3 The Functions of Dispute Settlement under the Convention


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

4.2Varying Degrees of Normativity

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

4.3.2 ‘Generally Accepted’


5 Conclusion


5Change through Interpretative Practice
1 Introduction

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

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

3.1.2 The Intention of the Parties

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

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


3.2Conclusions on the Meaning of Evolutionary Interpretation


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

4.1.2 Balancing Principles and the Standard of Judicial Review

4.1.3 Evolutionary Interpretation of Narrowly Described Rights

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

4.1.4.2Obligation to Cooperate

4.1.4.3Obligation to Conduct an eia

4.1.4.4Conclusions on the Role of Due Diligence


4.2The Role of Subsequent Agreements
4.2.1 Implementing Agreements

4.2.2 Regional Agreements


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

4.3.2 Subsequent Practice and Customary Law

4.3.3 The Role of Inconsistent State Practice

4.3.4 The Role of Soft Law


5 Conclusion


6Law in Context Change in Practice
1 Introduction

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

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


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

2.2.2 Carbon Capture and Storage

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


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

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

3.2.2 Developing the Exploitation Regulations


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

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

4.2.2 Balancing Unknown Risks: What Standard of Due Diligence?


5 Conclusion


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

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

3 Mechanisms for Change: Between Context and Practice


Bibliography

Index