2.1 The Law of the Sea as a Special Legal Regime of Public
International Law
The definition of regime will change accordingly if one navigates from law into
international relations and political theory. For a legal audience, regimes are a set of
codified legal norms (which excludes implicit rules) shaping individuals and state
behavior, backed by a particular institutional and organizational edifice. In line with
the international relations’ theory, regimes are “sets of implicit or explicit principles,
norms, rules and decision-making procedures around which actor’s expectations
converge in a given area of international relations”.
2 Whereas from a political theory
standpoint, regimes would be rather be described broadly as “governing arrangements constructed by states to coordinate their expectations and organize aspects of
international behavior in various issue areas. They thus comprise a normative
element, state practice, and organizational roles.”
3 Note the emphasis on “arrangements”, instead of rules, which are set in motion to “coordinate expectations”, and
not to shape behavior.
In international law, regimes may be qualified as “self-contained”, “special”,
among others. In a 2006 Report on the fragmentation of international law, the
International Law Commission (ILC) spoke against the misleading use of the term
“self-contained regime”, which could imply a hermetically closed set of primary and
secondary rules, non-existent in international law. Not even the law of diplomatic
relations is that closed.
4 Although no regime should ever be described as entirely
self-contained, it is correct to speak of “special” regimes, understood as a set of rules
and principles concerned with a particular subject-matter.
For the purposes of this work, here are key assumptions concerning the idea of
law of the sea as a special regime of international law. Firstly, regimes are “sets of
norms, decision-making procedures and organizations coalescing around functional
issue-areas”, which deal deals with specific areas of international life, such as human
rights law, humanitarian law, environmental law, refugee law, among others.
5 In
addition to that, it ought to be clear that regimes are sets of rules “dominated by
particular modes of behavior, assumptions and biases” of those making,
implementing and enforcing international law.
6 In short, they are part of the social
construction of law, and of law as a cultural product.
The specialty of some regimes was at the root of much concern during the 2000s,
when international lawyers voiced fears that international law could be losing its
unity and becoming helplessly fragmented. As newer regimes emerged and consolidated, such as international environmental, trade and climate change law, new treaty
2 Krasner (1982), p. 2.
3 Kratochwil and Ruggie (1986), p. 759.
4 Koskenniemi (2006), p. 11.
5 Young (2012), p. 9.
6 Id. 11.
20
2 The General International Legal Regime of the Continental Shelf
International Law
The definition of regime will change accordingly if one navigates from law into
international relations and political theory. For a legal audience, regimes are a set of
codified legal norms (which excludes implicit rules) shaping individuals and state
behavior, backed by a particular institutional and organizational edifice. In line with
the international relations’ theory, regimes are “sets of implicit or explicit principles,
norms, rules and decision-making procedures around which actor’s expectations
converge in a given area of international relations”.
2 Whereas from a political theory
standpoint, regimes would be rather be described broadly as “governing arrangements constructed by states to coordinate their expectations and organize aspects of
international behavior in various issue areas. They thus comprise a normative
element, state practice, and organizational roles.”
3 Note the emphasis on “arrangements”, instead of rules, which are set in motion to “coordinate expectations”, and
not to shape behavior.
In international law, regimes may be qualified as “self-contained”, “special”,
among others. In a 2006 Report on the fragmentation of international law, the
International Law Commission (ILC) spoke against the misleading use of the term
“self-contained regime”, which could imply a hermetically closed set of primary and
secondary rules, non-existent in international law. Not even the law of diplomatic
relations is that closed.
4 Although no regime should ever be described as entirely
self-contained, it is correct to speak of “special” regimes, understood as a set of rules
and principles concerned with a particular subject-matter.
For the purposes of this work, here are key assumptions concerning the idea of
law of the sea as a special regime of international law. Firstly, regimes are “sets of
norms, decision-making procedures and organizations coalescing around functional
issue-areas”, which deal deals with specific areas of international life, such as human
rights law, humanitarian law, environmental law, refugee law, among others.
5 In
addition to that, it ought to be clear that regimes are sets of rules “dominated by
particular modes of behavior, assumptions and biases” of those making,
implementing and enforcing international law.
6 In short, they are part of the social
construction of law, and of law as a cultural product.
The specialty of some regimes was at the root of much concern during the 2000s,
when international lawyers voiced fears that international law could be losing its
unity and becoming helplessly fragmented. As newer regimes emerged and consolidated, such as international environmental, trade and climate change law, new treaty
2 Krasner (1982), p. 2.
3 Kratochwil and Ruggie (1986), p. 759.
4 Koskenniemi (2006), p. 11.
5 Young (2012), p. 9.
6 Id. 11.
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2 The General International Legal Regime of the Continental Shelf