Unconventional Lawmaking in the Law of the Sea

Description

Unconventional Lawmaking in the Law of the Sea explores the ways that actors operating at the international level develop standards of behaviour to regulate varied maritime activities beyond traditional lawmaking. Other than conventions and customary international law, there is a plethora of international agreements that influence international conduct. This 'soft law' or 'informal law' is now prolific in ocean governance, and so it is time to consider its significance for the law of the sea. This monograph brings together women law-of-the-sea scholars with expertise in specific areas of the law of the sea, as well as international law more generally. Informal lawmaking is examined in relation to ocean resources, maritime security, shipping and navigation, and the marine environment. In each instance, there are reflections on the diverse actors, processes, and outputs shaping the regulation of the oceans. The analyses in this book further consider what this activity means within the rules on the sources, formation, and interpretation of international law. The growing reliance on informal agreements to fill legal gaps provides quick responses to pressing matters. We must assess and understand these new forms of cooperation in order to influence existing treaties or customary international law. Unconventional Lawmaking in the Law of the Sea surveys the scope of informal lawmaking in the law of the sea and evaluates the significance of this activity for the UN Convention on the Law of the Sea, as well as for ocean governance more broadly, now and in the future. Cover Unconventional Lawmaking in the Law of the Sea Copyright Table of Contents List of Treaties and International Instruments List of Abbreviations Notes on Contributors 1. Meaning, Scope, and Significance of Informal Lawmaking in the Law of the Sea 1.1 Introduction 1.2 What is Informal Law? 1.3 Process of Informal Lawmaking 1.4 Participants in Informal Lawmaking 1.5 Outputs of Informal Lawmaking and their Normative Value 1.6 Significance of Informal Lawmaking for the Law of the Sea 1.7 Concluding Remarks 2. The San Remo Manual on the Law of Naval Warfare—​from Restatement to Development? 2.1 Introduction 2.2 The San Remo Manual 2.2.1 The Traditional Laws of Naval Warfare: The Hague Conventions (1899 and 1907) and Beyond 2.2.2 The Changing Context for the Law of Naval Warfare 2.2.3 Incorporating the LOSC into the San Remo Manual 2.2.4 Drafting the San Remo Manual 2.3 The Many Faces of Informality 2.3.1 The Manual as a Collection of Non-​binding Norms 2.3.2 The Availability of Norms and their Acceptance 2.3.3 The Interests of States 2.4 The Trend towards Informality in the Law of Armed Conflict 2.5 San Remo Manual 2.0: Preparing a Sequel? 2.6 Conclusions 3. Piracy off the Coast of Somalia and the Role of Informal Lawmaking 3.1 Introduction 3.2 Existing Legal Framework on Piracy 3.3 Security Council Responses and the Work of the Contact Group on Piracy off the Coast of Somalia 3.3.1 Security Council Resolutions 3.3.2 Contact Group on Piracy off the Coast of Somalia 3.4 The IMO and the Djibouti Code of Conduct, Jeddah Amendment, and Yaoundé Code 3.4.1 IMO Actions Responding to Piracy 3.4.2 Djibouti Code of Conduct 3.4.3 Yaoundé Code and Jeddah Amendment 3.5 Other Informal Agreements and Arrangements Responding to Somali Piracy 3.5.1 Transfer Agreements 3.5.2 Privately Contracted Armed Security Personnel 3.5.3 Naval Arrangements 3.6 Lessons Learned and Concluding Remarks 4. Informal Lawmaking in Maritime Migration 4.1 The Informality of Maritime Migration Law 4.2 A Perspective on Informal Lawmaking 4.3 Informal Lawmaking in Formal Settings 4.4 Informal Lawmaking by Informal Actors 4.4.1 Non-​state Actors and the Development of Informal Instruments 4.4.2 Non-​state Actors’ Practice and its Role in the Creation of Law 4.5 Informal Lawmaking: An Easy Way Out or an Easy Way In? 5. Unconventional Lawmaking and International Cooperation on Illegal Bunkering at Sea 5.1 The Problem: Illegal Bunkering and the Limits of Formal Law 5.1.1 Illegal Bunkering and its Social Harms 5.1.2 Jurisdictional Limits under the Law of the Sea 5.1.3 The Significance of Informal Lawmaking 5.2 Regulations within the Jurisdiction Allocated under the LOSC 5.2.1 Fisheries Management 5.2.2 Environmental Protection 5.3 Regulation by Non-​flag States 5.3.1 General Overview and State Practice 5.3.2 The Roles of Informal Instruments 5.4 Concluding Remarks 6. Unconventional Lawmaking in the Compliance Mechanism for the International Regulation of Shipping 6.1 Introduction 6.2 Lawmaking at the IMO 6.2.1 Structure and Membership of the IMO 6.2.2 Elements of the Lawmaking Process at the IMO 6.2.3 Instruments Adopted under the Auspices of the IMO 6.3 Compliance Mechanisms under the IMO Regulatory Regime 6.3.1 Compliance and Control 6.3.2 Member State Audit Scheme 6.4 The Interaction between Unconventional Lawmaking and Formal Treaty Law 6.4.1 The Role of Non-​state Actors 6.4.2 The Role of Non-​mandatory Instruments 6.5 Conclusion 7. Unconventional Law for Unconventional Ships? The Role of Informal Law in the International Maritime Organization’s Quest to Regulate Maritime Autonomous Surface Ships 7.1 Introduction 7.2 MASS Posing Exceptional Regulatory Challenges 7.3 The IMO’s Efforts to Integrate MASS in its Regulatory Framework 7.4 IMO and Informal Law 7.5 Informal Law and MASS 7.5.1 Post-​law Function of Informal Law: Informing the Interpretation of Treaties 7.5.2 Pre-​ and Para-​law Function of Informal Law: Paving the Way for, or even Replacing, Treaties 7.6 Conclusion 8. The Use of Informal Agreements to Enhance Navigational Safety 8.1 Introduction 8.2 Formal Law Regulating Navigational Safety 8.2.1 The LOSC and Customary International Law 8.2.2 COLREGS and other International Treaties 8.3 Informal Agreements on Navigational Safety and their Intersection with Existing Legal Principles 8.3.1 Declaration of Conduct and Code of Conduct 8.3.2 Code for Unplanned Encounters at Sea 8.3.3 China–​US MoUs 8.3.3.1 Behavior MoU 8.3.3.2 Notification MoU 8.4 Alternative Explanatory Paradigms for Informal Agreements on Navigational Safety 8.4.1 Confidence-​building Measures 8.4.2 Experimentalist Governance 8.5 Concluding Remarks 9. Unconventional Lawmaking in the Offshore Energy Sector: Flexibilities and Weaknesses of the International Legal Framework 9.1 Introduction 9.2 The Fragmented Legal Framework 9.2.1 The Ratione Materiae Fragmentation at the Global Level 9.2.2 The Geographical Fragmentation at the Regional Level 9.3 Unconventional Lawmaking in Conventional Fora 9.3.1 Unconventional Lawmaking by the International Maritime Organization and Global Treaty Bodies 9.3.2 Unconventional Lawmaking by Regional Seas Treaties Bodies 9.4 Unconventional Lawmaking by Unconventional Actors 9.5 Concluding Remarks: Unconventional Law or Conventional Means of Interpretation 10. Formal and Informal Lawmaking by the International Seabed Authority: An Artificial Distinction? 10.1 Introduction 10.2 Formal Lawmaking by the ISA 10.2.1 Source of Authority 10.2.1.1 Regulations 10.2.1.2 Standards 10.2.2 Process of Adoption 10.2.2.1 Regulations 10.2.2.2 Standards 10.2.3 Participants 10.2.3.1 Regulations 10.2.3.2 Standards 10.2.4 Normative Intent 10.2.4.1 Regulations 10.2.4.2 Standards 10.2.5 Normative Effect 10.3 Informal Lawmaking by the ISA 10.3.1 Formal Processes Leading to Informal Outputs: Regional Environmental Management Plans 10.3.1.1 Source of Authority 10.3.1.2 Process of Adoption 10.3.1.3 Participants 10.3.1.4 Normative Intent 10.3.1.5 Normative Effect 10.3.2 Semi-​formal Processes Leading to Informal Outputs: Recommendations and Guidelines 10.3.2.1 Source of Authority 10.3.2.2 Process of Adoption 10.3.2.3 Participants 10.3.2.4 Normative Intent 10.3.2.5 Normative Effect 10.3.3 Informal Processes Leading to Informal Outputs 10.4 Conclusions 11. The Significance of Informal Lawmaking in International Fisheries Law 11.1 Introduction 11.2 The Formal Legal Framework in International Fisheries Law 11.3 Informal Instruments in the International Fisheries Sphere 11.3.1 FAO Code of Conduct and Technical Guidelines for Responsible Fisheries 11.3.2 IPOA–​IUU 11.3.3 Other IPOAs 11.3.4 FAO Guidelines 11.3.5 UN General Assembly Resolutions 11.4 The Contribution of Informal Fisheries Instruments to International Fisheries Law 11.4.1 The Incorporation of Modern Approaches into International Fisheries Law 11.4.2 The Incorporation of Global Standards into Law, and a Catalyst for Legal Action 11.4.3 Detailed Guidance on Implementation 11.4.4 Informal Instruments as Interpretive Guidance 11.4.5 The Development of Customary International Law? 11.5 The Capacity of Informal Instruments to Influence International Fisheries Law 11.5.1 The Non-​binding Nature of Informal Instruments 11.5.2 Influence Derived from Development Process and Quality 11.6 Conclusion 12. Marine Scientific Research and Informal Lawmaking 12.1 Introduction 12.2 The LOSC Framework on Marine Scientific Research 12.2.1 Definition of Marine Scientific Research 12.2.2 Definition of ‘Competent International Organizations’ 12.2.3 Relationship with Part XII of the LOSC on the Protection and Preservation of the Marine Environment 12.3 Examples of Informal Lawmaking in Marine Scientific Research 12.3.1 Informal Lawmaking on Marine Scientific Research by International Organizations 12.3.1.1 Division for Ocean Affairs and the Law of the Sea of the United Nations 12.3.1.2 Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization 12.3.1.3 International Seabed Authority 12.3.2 Extending Formal Law for the Participation of Non-​state Actors in Marine Scientific Research 12.3.3 Influence of Voluntary Standard-​setting by Non-​state Actors on Informal Lawmaking 12.4 Conclusions 13. The Role of Informal Lawmaking in Facilitating Marine Technology Transfer and Data Sharing 13.1 Introduction 13.2 The Marine Technology Landscape 13.3 The Use of Marine Technologies for Fishing 13.3.1 The LOSC Framework 13.3.2 Informal Law and the Use of Marine Technology 13.4 Development and Transfer of Marine Technologies 13.4.1 The LOSC Framework 13.4.2 Informal Law Supporting the Development and Transfer of Technology 13.5 Exchange and Sharing of Data 13.5.1 The LOSC Framework 13.5.2 Informal Law on Data Collection and Sharing 13.6 Analysing the Significance of Informal Law Relating to Fishing Technologies 13.7 Concluding Remarks 14. The Sustainable Development Goals and Informal Lawmaking Processes: How a Voluntary Initiative Sets International Standards for Governments and the Private Sector 14.1 Introduction 14.2 Sustainable Development Goals and Goal 14 14.2.1 History of Goal 14 14.2.2 Targets under Goal 14 14.3 SDGs Operating as Standards for Implementing the Law of the Sea 14.3.1 Target 14.5 (Increase Waters under Marine Protection) 14.3.2 Target 14.c 14.4 Role of Private Sector in Implementing SDG14 and Informal Lawmaking by Private Business Sector 14.4.1 Fisheries Commitment towards MSC Certification 14.4.2 Marine Plastic Pollution 14.5 Concluding Thoughts about SDGs as an Informal Lawmaking Process 15. Informal International Lawmaking as a Panacea in the Absence of Regime Focus? Marine Debris, Plastics, and Microplastics 15.1 Introduction 15.2 International Recognition of the Problem of Marine Plastic Debris 15.3 Defining ‘Informal International Lawmaking’ 15.4 Informal Lawmaking and Ship-​source Marine Plastic Debris 15.5 Informal Lawmaking and Land-​based Sources of Marine Plastic Debris 15.6 Conclusion 16. Unconventional Lawmaking in the Law of the Sea and Area-​based Conservation Measures 16.1 Introduction 16.2 ‘Unconventional’ or ‘Informal’ Lawmaking and the Law of the Sea 16.3 Defining Area-​based Conservation Measures 16.4 ‘Conventional’ Sources of Area-​based Conservation Measures 16.5 ‘Unconventional’ Sources of Area-​based Conservation Measures 16.5.1 Binding Area-​based Conservation Measures Adopted by RFMOs and Regional Seas Organizations 16.5.1.1 OSPAR 16.5.1.2 CCAMLR 16.5.2 Binding Area-​based Conservation Measures Adopted by the IMO 16.5.3 Binding Area-​based Conservation Measures Adopted by the ISA 16.5.4 Non-​binding ‘Pledges’ to Establish MPAs and other Area-​based Conservation Measures 16.5.4.1 UN and CBD Targets to Protect 10 % of the Oceans by 2020 16.5.4.2 2014 Hamilton Declaration for the Conservation of the Sargasso Sea 16.5.5 Non-​binding Guidelines and other Measures Adopted by International Organizations and Institutions 16.5.5.1 The CBD, Area-​based Protection, and Ecologically or Biologically Significant Marine Areas (EBSAs) 16.5.5.2 FAO and VMEs 16.5.6 Non-​binding Guidelines and other Measures Adopted by the IUCN 16.5.6.1 IUCN Protected Area Guidelines 16.5.6.2 Important Marine Mammal Areas (IMMAs) and the IUCN Global Standards for the Identification of Key Biodiversity Areas (KBAs) 16.6 ‘Unconventional’ Area-​based Conservation Measures and the International Legally Binding Instrument for the Conservation and Sustainable Use of Biodiversity beyond National Jurisdiction (ILBI) 16.7 Concluding Remarks 17. Sea Level Rise and the Law of the Sea: Filling the Legal Gaps through Informal Lawmaking 17.1 Introduction 17.2 Gaps in the Legal Regime in Relation to Sea Level Rise 17.2.1 Legal Uncertainty Surrounding the Effects of Sea Level Rise on Baselines and the Outer Limits of the Maritime Spaces Measured from the Baselines 17.2.2 Legal Uncertainty Surrounding the Effects of Sea Level Rise on Islands 17.3 Current Processes for Informal Lawmaking for Sea Level Rise 17.3.1 Processes and Mechanisms under the UNFCCC and the Paris Agreement 17.3.1.1 Cancun Adaptation Framework and National Adaptation Plans 17.3.1.2 Warsaw International Mechanism for Loss and Damage 17.3.1.3 Nationally Determined Contributions 17.3.1.4 Subsidiary Body for Scientific and Technological Advice and Oceans Dialogue 17.3.1.5 Nairobi Work Programme on Impacts, Vulnerability, and Adaptation to Climate Change 17.3.2 Efforts under the Existing LOSC Regime 17.3.3 Informal Lawmaking Efforts as Subsequent Agreements and Subsequent Practice 17.3.4 Regional Informal Lawmaking Processes for Sea Level Rise 17.3.4.1 Work Undertaken by the Pacific Islands Forum 17.3.4.2 Efforts by Small Island Developing States and CARICOM 17.3.5 International Courts and Tribunals 17.4 Conclusion 18. Informal Lawmaking and the Future of the Law of the Sea: Developing Legal Infrastructure and Regulating Human Activity 18.1 Introduction 18.2 Developing Legal Infrastructure 18.2.1 Relations between the Global South and the Global North 18.2.1.1 Decision-​making at UNCLOS III 18.2.1.2 Developing the Deep Seabed Mining Regime 18.2.1.3 Transferring Marine Technology 18.2.2 Informal Instruments in the Relationship between the Global South and Global North 18.2.3 The Exercise of Jurisdiction at Sea 18.2.3.1 Early Examples 18.2.3.2 Stabilizing Baselines 18.2.3.3 The BBNJ Negotiations 18.2.3.4 Combating Armed Robbery and other Illicit Activities in the Territorial Sea of Somalia and the Gulf of Aden 18.2.3.5 Legal Effect 18.3 Regulating Human Activity 18.3.1 Regulating Human Activity Based on Inter-​state Cooperation 18.3.2 Private Standard Setting 18.3.3 Administration 18.4 Concluding Remarks Bibliography Index