fields of law has contributed to the establishment of a coordinated chain of principles, which work in a systemic and coordinated way.
58 According to Menezes, “the
law of the sea is the result of an international normative dialectic, it is an autonomous
field, but linked and coordinated axiologically by general international law”. Such
“dialectics” consists of the dual sources of principles informing the law of the sea,
offering guidance and “steering” interpretation and application: general international
legal principles,
59 and specific ones, as devised in UNCLOS.
Take, for instance, some of the main principles inspiring the law of the sea
system, as the principle of the “common heritage of mankind”, an elaboration of
the “common concern of mankind”, as read in the 1959 Antarctic Treaty;
60 the
principle of equality, which involves the equally shared obligation to protect and
preserve the marine environment; or the principle of the promotion of “social and
economic progress”, a norm that can be rather linked to a goal, an aspiration present
already in the Preamble of UNCLOS,
61 but still filled with normative content, to the
extent of informing other norms of the law of the sea, such as the rule of technology
transfer, pursuant to Art. 62 (4) (j), on the transfer of fisheries technology, and Art.
144 of the Convention, on the transfer of deep-sea mining technology between
developed and developing states. Those are but a few examples of how much
entrenched legal principles are to the law of the sea.
62
Concerning the relatively short continental shelf regime (in comparison with the
set of rules comprising other parts of UNCLOS), the key principles for this study are
the natural prolongation, the principle of inherent entitlement of the coastal state to
the continental shelf, and the sovereign and exclusive rights of the coastal state over
the continental shelf for the purpose of its exploration and exploitation of its
resources.
58 Menezes (2015), p. 50.
59 Examples of the so-called general principles of international law include the principle of consent,
reciprocity, equality of states, good faith, finality of awards and settlements, among others. Those
are “primarily abstractions and have been accepted for so long and so generally as no longer to be
directly connected to state practice”. See Crawford (2012), p. 37.
60 The 1959 Antarctic Treaty, 12 UST 794; 402 UNTS 71; 19 ILM 860 (1980).
61 “Believing that the codification and progressive development of the law of the sea achieved in this
Convention will contribute to the strengthening of peace, security, cooperation and friendly
relations among all nations in conformity with the principles of justice and equal rights and will
promote the economic and social advancement of all peoples of the world, in accordance with the
Purposes and Principles of the United Nations as set forth in the Charter”. UNCLOS, Preamble,
emphasis added.
62 Take, as a few examples more, the principles of peaceful settlement of dispute, freedom of the
seas, territorial sovereignty, pollution prevention, amongst many others within the Convention for
the Law of the Sea.
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2 The General International Legal Regime of the Continental Shelf
58 According to Menezes, “the
law of the sea is the result of an international normative dialectic, it is an autonomous
field, but linked and coordinated axiologically by general international law”. Such
“dialectics” consists of the dual sources of principles informing the law of the sea,
offering guidance and “steering” interpretation and application: general international
legal principles,
59 and specific ones, as devised in UNCLOS.
Take, for instance, some of the main principles inspiring the law of the sea
system, as the principle of the “common heritage of mankind”, an elaboration of
the “common concern of mankind”, as read in the 1959 Antarctic Treaty;
60 the
principle of equality, which involves the equally shared obligation to protect and
preserve the marine environment; or the principle of the promotion of “social and
economic progress”, a norm that can be rather linked to a goal, an aspiration present
already in the Preamble of UNCLOS,
61 but still filled with normative content, to the
extent of informing other norms of the law of the sea, such as the rule of technology
transfer, pursuant to Art. 62 (4) (j), on the transfer of fisheries technology, and Art.
144 of the Convention, on the transfer of deep-sea mining technology between
developed and developing states. Those are but a few examples of how much
entrenched legal principles are to the law of the sea.
62
Concerning the relatively short continental shelf regime (in comparison with the
set of rules comprising other parts of UNCLOS), the key principles for this study are
the natural prolongation, the principle of inherent entitlement of the coastal state to
the continental shelf, and the sovereign and exclusive rights of the coastal state over
the continental shelf for the purpose of its exploration and exploitation of its
resources.
58 Menezes (2015), p. 50.
59 Examples of the so-called general principles of international law include the principle of consent,
reciprocity, equality of states, good faith, finality of awards and settlements, among others. Those
are “primarily abstractions and have been accepted for so long and so generally as no longer to be
directly connected to state practice”. See Crawford (2012), p. 37.
60 The 1959 Antarctic Treaty, 12 UST 794; 402 UNTS 71; 19 ILM 860 (1980).
61 “Believing that the codification and progressive development of the law of the sea achieved in this
Convention will contribute to the strengthening of peace, security, cooperation and friendly
relations among all nations in conformity with the principles of justice and equal rights and will
promote the economic and social advancement of all peoples of the world, in accordance with the
Purposes and Principles of the United Nations as set forth in the Charter”. UNCLOS, Preamble,
emphasis added.
62 Take, as a few examples more, the principles of peaceful settlement of dispute, freedom of the
seas, territorial sovereignty, pollution prevention, amongst many others within the Convention for
the Law of the Sea.
34
2 The General International Legal Regime of the Continental Shelf