In light of such limitations, posed by unforeseen challenges such criminal jurisdiction on the EEZ (as faced by the International Tribunal for the Law of the Sea in
the Enrica Lexie case),
28 climate change, ocean acidification et al., a possible
approach is to envisage the Convention as a “living instrument”. In other words, a
treaty that enjoys continuous vitality and evolves over time as a result of reiterated
interpretation of its provisions, thereby growing and evolving, just like a living
organism. For Barrett and Barnes, for instance, UNCLOS can adapt to changing
circumstances and to address major challenges not foreseen at the time of negotiations.
29 Such growth is made possible by heteronomous inputs, which use the text of
the Convention itself. In other words, it does not take an amendment to change
UNCLOS, but interpretations by treaty-based institutions and informal processes of
change.
If seen as a constitution (which establishes a system of institutions, and organizes
the governance of the oceans alongside other legal regimes), UNCLOS should not be
read in isolation. “Lives beyond the terms of any individual text”.
30 There is an
intrinsic relevance of further interaction between formal and informal processes of
change, and the role of actors interested in the implementation of UNCLOS’s
provisions. Concerning internal mechanisms of change, one could mention the
amendment conference; and a simplified procedure or procedure for amendments
to Part XI.
In the process of evolving, there is an undeniable role to be played by UNCLOS’s
institutions: the International Tribunal for the Law of the Sea, ITLOS; the International Seabed Authority, ISA; and the Commission for the Limits of the Continental
Shelf, CLCS. Take, for instance, ITLOS’ decision to recognize advisory jurisdiction
to the full court in the 2015 Advisory Opinion on Flag State Responsibility for
Illegal, Unregulated and Unreported Fishing, which, due to the ground-breaking
interpretation of the Convention, was faced with resistance by members of the
international community. The United Kingdom, for example, rejected the possibility
of reading UNCLOS as “living instrument” with powers of its own, particularly so in
matters of assessing jurisdiction.
Another important actor in advancing homeopathic changes in the Convention is
the Meeting of the State Parties (SPLOS), an organ that has the competence to pass
non-binding resolutions, which are nonetheless meaningful for the purpose of
“breathing life” into UNCLOS. They are not supposed to interpret UNCLOS, but
do it anyway. In addition to the SPLOS, one could not obliviate the GAIRS, or
Generally Accepted International Rules and Standards—reference to external rules
that are essential to the implementation of UNCLOS.
31
28 ITLOS “Enrica Lexie” Incident (Italy v. India), Provisional Measures. Order of 24 August 2015,
ITLOS Reports 2015.
29 Barrett and Barnes (2016), p. 14.
30 Id. 14.
31 Id. 21.
26
2 The General International Legal Regime of the Continental Shelf
the Enrica Lexie case),
28 climate change, ocean acidification et al., a possible
approach is to envisage the Convention as a “living instrument”. In other words, a
treaty that enjoys continuous vitality and evolves over time as a result of reiterated
interpretation of its provisions, thereby growing and evolving, just like a living
organism. For Barrett and Barnes, for instance, UNCLOS can adapt to changing
circumstances and to address major challenges not foreseen at the time of negotiations.
29 Such growth is made possible by heteronomous inputs, which use the text of
the Convention itself. In other words, it does not take an amendment to change
UNCLOS, but interpretations by treaty-based institutions and informal processes of
change.
If seen as a constitution (which establishes a system of institutions, and organizes
the governance of the oceans alongside other legal regimes), UNCLOS should not be
read in isolation. “Lives beyond the terms of any individual text”.
30 There is an
intrinsic relevance of further interaction between formal and informal processes of
change, and the role of actors interested in the implementation of UNCLOS’s
provisions. Concerning internal mechanisms of change, one could mention the
amendment conference; and a simplified procedure or procedure for amendments
to Part XI.
In the process of evolving, there is an undeniable role to be played by UNCLOS’s
institutions: the International Tribunal for the Law of the Sea, ITLOS; the International Seabed Authority, ISA; and the Commission for the Limits of the Continental
Shelf, CLCS. Take, for instance, ITLOS’ decision to recognize advisory jurisdiction
to the full court in the 2015 Advisory Opinion on Flag State Responsibility for
Illegal, Unregulated and Unreported Fishing, which, due to the ground-breaking
interpretation of the Convention, was faced with resistance by members of the
international community. The United Kingdom, for example, rejected the possibility
of reading UNCLOS as “living instrument” with powers of its own, particularly so in
matters of assessing jurisdiction.
Another important actor in advancing homeopathic changes in the Convention is
the Meeting of the State Parties (SPLOS), an organ that has the competence to pass
non-binding resolutions, which are nonetheless meaningful for the purpose of
“breathing life” into UNCLOS. They are not supposed to interpret UNCLOS, but
do it anyway. In addition to the SPLOS, one could not obliviate the GAIRS, or
Generally Accepted International Rules and Standards—reference to external rules
that are essential to the implementation of UNCLOS.
31
28 ITLOS “Enrica Lexie” Incident (Italy v. India), Provisional Measures. Order of 24 August 2015,
ITLOS Reports 2015.
29 Barrett and Barnes (2016), p. 14.
30 Id. 14.
31 Id. 21.
26
2 The General International Legal Regime of the Continental Shelf