85
‘constitution for the seas and oceans’, it is a constitution lacking a pre-established,
solid organizational structure.
However, even though there is a carence institutionnelle in the constitution for
the seas and oceans, certain institutional structures have developed in practice, simply because there was a need. While the relevance of governance institutions is
neglected in UNCLOS, this has been corrected in practice to some extent. Somewhat
spontaneously, over time in practice an institutional framework for the law of the
sea has evolved. Essentially, there are two general frameworks within which law of
the sea issues are reviewed and discussed: the UN General Assembly and
SPLOS. There is a considerable overlap in membership of these two bodies, the
most important difference being that the US is not a member of SPLOS, but only an
observer—and reportedly not a silent observer.
10
The UN General Assembly provides a forum for annual consultations on the law of the sea. A concrete annual
output of this forum is the ‘omnibus resolution’, usually the longest resolution of the
GA each year.
11
However, for the purpose of this contribution SPLOS is most relevant, as this is the governance institution, the INJUGOVIN of ITLOS.
2.2 SPLOS as a ‘Specialized Mini General Assembly’
SPLOS could be considered as a specialized ‘mini UN General Assembly’. The first
meeting of SPLOS took place on 21 and 22 November 1994, immediately following
the entry into force of UNCLOS (16 November 1994). It was convened by the
Secretary-General of the UN on an ad hoc basis. The subsequent meetings of
SPLOS were convened in accordance with the decisions taken at previous meetings.
12
SPLOS meetings normally take place once a year at UN headquarters, following procedures similar to those for the General Assembly. SPLOS has its own
rules of procedure, which closely follow the rules of procedure for UN conferences
and meetings.
13
There are the standard agenda items (adoption of the agenda,
approval of the credentials of representatives), there are observers, reports are discussed, decisions are taken. The secretariat functions for SPLOS are carried out by
the UN Secretariat, more specifically the Division for Ocean Affairs and the Law of
the Sea (DOALOS).
The legal basis for SPLOS is in UNCLOS. Hidden in the final provisions of
UNCLOS, in Article 319 on the role of the depository, paragraph 2(e) provides that
the Secretary-General of the UN “shall convene necessary meetings of States Parties
in accordance with this Convention”. This is all. There are no general provisions on
its function, composition, decision-making, etc. (as for example in the ICC Statute
10 Ibidem, p. 62.
11 E.g. UN Doc. A/RES/72/73. On these omnibus resolutions, see Lijnzaad (2014), in particular
pp. 121–126.
12 Rao and Gautier (2018), p. 72.
13 Doc. SPLOS/2/Rev.4 (2005).
Governance of the International Tribunal of the Law of the Sea: The Role…
‘constitution for the seas and oceans’, it is a constitution lacking a pre-established,
solid organizational structure.
However, even though there is a carence institutionnelle in the constitution for
the seas and oceans, certain institutional structures have developed in practice, simply because there was a need. While the relevance of governance institutions is
neglected in UNCLOS, this has been corrected in practice to some extent. Somewhat
spontaneously, over time in practice an institutional framework for the law of the
sea has evolved. Essentially, there are two general frameworks within which law of
the sea issues are reviewed and discussed: the UN General Assembly and
SPLOS. There is a considerable overlap in membership of these two bodies, the
most important difference being that the US is not a member of SPLOS, but only an
observer—and reportedly not a silent observer.
10
The UN General Assembly provides a forum for annual consultations on the law of the sea. A concrete annual
output of this forum is the ‘omnibus resolution’, usually the longest resolution of the
GA each year.
11
However, for the purpose of this contribution SPLOS is most relevant, as this is the governance institution, the INJUGOVIN of ITLOS.
2.2 SPLOS as a ‘Specialized Mini General Assembly’
SPLOS could be considered as a specialized ‘mini UN General Assembly’. The first
meeting of SPLOS took place on 21 and 22 November 1994, immediately following
the entry into force of UNCLOS (16 November 1994). It was convened by the
Secretary-General of the UN on an ad hoc basis. The subsequent meetings of
SPLOS were convened in accordance with the decisions taken at previous meetings.
12
SPLOS meetings normally take place once a year at UN headquarters, following procedures similar to those for the General Assembly. SPLOS has its own
rules of procedure, which closely follow the rules of procedure for UN conferences
and meetings.
13
There are the standard agenda items (adoption of the agenda,
approval of the credentials of representatives), there are observers, reports are discussed, decisions are taken. The secretariat functions for SPLOS are carried out by
the UN Secretariat, more specifically the Division for Ocean Affairs and the Law of
the Sea (DOALOS).
The legal basis for SPLOS is in UNCLOS. Hidden in the final provisions of
UNCLOS, in Article 319 on the role of the depository, paragraph 2(e) provides that
the Secretary-General of the UN “shall convene necessary meetings of States Parties
in accordance with this Convention”. This is all. There are no general provisions on
its function, composition, decision-making, etc. (as for example in the ICC Statute
10 Ibidem, p. 62.
11 E.g. UN Doc. A/RES/72/73. On these omnibus resolutions, see Lijnzaad (2014), in particular
pp. 121–126.
12 Rao and Gautier (2018), p. 72.
13 Doc. SPLOS/2/Rev.4 (2005).
Governance of the International Tribunal of the Law of the Sea: The Role…