understood without reference to later developments in the realm of international
environmental law.
13
2.2 UN Convention on the Law of the Sea: Cornerstone
of the New Law of the Sea
The new law of the sea emerged, at least formally, upon the adoption of the 1982
UNCLOS and its Annexes I to IX, followed by other international binding and
non-binding instruments which unified previous regulations and created a true legal
order for the oceans. The main purpose of such order is to facilitate international
communications, promote the peaceful use of the seas, and the equitable and
efficient use of its resources.
14 For that reason, UNCLOS is commonly described
as “a comprehensive constitution for the oceans”,
15 perhaps “the most significant
international agreement since the Charter of the United Nations”. It is the most iconic
document for the law of the sea, finishing-line of almost 10 years of hard-fought
negotiations between different formal and informal groups of states, each one
upholding specific interests while shaping the new ordre publique for the oceans.
16
The entry into force of UNCLOS can be portrayed as an earthquake in the
traditional international ocean law landscape. The negotiation efforts praised many
times in academic publications, and the comprehensiveness of that treaty increase its
relevance for the regulation of ocean matters. UNCLOS was, indeed, the first
document to codify a comprehensive legal framework for the rational and
13 It was the case of the 1992 Rio Declaration and the Convention on Biological Diversity, among
several others. For more on such necessary inter-relation between those regimes, see Birnie et al.
(2009), p. 384.
14 Other instruments include the Implementation Agreement of Part XI of UNCLOS (1994), and the
UN Agreement on Straddling and Highly Migratory Stocks, A/CONF.164/37, 8 September 1995.
15 Koh (1982).
16 UNCLOS’ negotiations were particularly tough, in light of the chosen “package deal approach”,
i.e. the Convention’s provisions as constituting a coherent whole. See Harrison (2011), pp. 44–45.
A direct consequence of such drafting methodology is that states may not make reservations or
exceptions to the Convention, as posited in Art. 309 UNCLOS. In addition to that, Art. 310 allows
signatory states to make declarations, provided they do not “purport to exclude or to modify the
legal effect of the provisions of this Convention in their application to that State”. An example is the
case of Brazil, which has expressed concern over the possibility of foreign military vessels
conducting military exercises in water off the Brazilian coast. The Brazilian Declaration reads:
“The Brazilian Government understands that the provisions of the Convention do not authorize
other States to carry out military exercises or maneuvers, in particular those involving the use of
weapons or explosives, in the exclusive economic zone without the consent of the coastal State”.
Brazil (1988) UNCLOS Declarations and Statements (n. 52). Such refrain might be connected to the
country’s history of foreign interventions since colonial times and, in recent history, due to US
Navy presence, in the case of the Operation Brother Sam, a movement by the United States Navy to
support the military coup d’état in 1964. See Cavalcanti (2015) chap. 3.
2.2 UN Convention on the Law of the Sea: Cornerstone of the New Law of the Sea
23
environmental law.
13
2.2 UN Convention on the Law of the Sea: Cornerstone
of the New Law of the Sea
The new law of the sea emerged, at least formally, upon the adoption of the 1982
UNCLOS and its Annexes I to IX, followed by other international binding and
non-binding instruments which unified previous regulations and created a true legal
order for the oceans. The main purpose of such order is to facilitate international
communications, promote the peaceful use of the seas, and the equitable and
efficient use of its resources.
14 For that reason, UNCLOS is commonly described
as “a comprehensive constitution for the oceans”,
15 perhaps “the most significant
international agreement since the Charter of the United Nations”. It is the most iconic
document for the law of the sea, finishing-line of almost 10 years of hard-fought
negotiations between different formal and informal groups of states, each one
upholding specific interests while shaping the new ordre publique for the oceans.
16
The entry into force of UNCLOS can be portrayed as an earthquake in the
traditional international ocean law landscape. The negotiation efforts praised many
times in academic publications, and the comprehensiveness of that treaty increase its
relevance for the regulation of ocean matters. UNCLOS was, indeed, the first
document to codify a comprehensive legal framework for the rational and
13 It was the case of the 1992 Rio Declaration and the Convention on Biological Diversity, among
several others. For more on such necessary inter-relation between those regimes, see Birnie et al.
(2009), p. 384.
14 Other instruments include the Implementation Agreement of Part XI of UNCLOS (1994), and the
UN Agreement on Straddling and Highly Migratory Stocks, A/CONF.164/37, 8 September 1995.
15 Koh (1982).
16 UNCLOS’ negotiations were particularly tough, in light of the chosen “package deal approach”,
i.e. the Convention’s provisions as constituting a coherent whole. See Harrison (2011), pp. 44–45.
A direct consequence of such drafting methodology is that states may not make reservations or
exceptions to the Convention, as posited in Art. 309 UNCLOS. In addition to that, Art. 310 allows
signatory states to make declarations, provided they do not “purport to exclude or to modify the
legal effect of the provisions of this Convention in their application to that State”. An example is the
case of Brazil, which has expressed concern over the possibility of foreign military vessels
conducting military exercises in water off the Brazilian coast. The Brazilian Declaration reads:
“The Brazilian Government understands that the provisions of the Convention do not authorize
other States to carry out military exercises or maneuvers, in particular those involving the use of
weapons or explosives, in the exclusive economic zone without the consent of the coastal State”.
Brazil (1988) UNCLOS Declarations and Statements (n. 52). Such refrain might be connected to the
country’s history of foreign interventions since colonial times and, in recent history, due to US
Navy presence, in the case of the Operation Brother Sam, a movement by the United States Navy to
support the military coup d’état in 1964. See Cavalcanti (2015) chap. 3.
2.2 UN Convention on the Law of the Sea: Cornerstone of the New Law of the Sea
23