China was temporarily unable to perform its long-standing historic role as one of the
main global powers; if not the main. China may also have similar arguments in
relation to the international law of the sea more in general, or even international law
as such.
Such arguments bear some similarity with the arguments advanced by newly
independent States during and after the post-World War II process of decolonization.
These States did not accept the then existing international law of the sea as laid down
in the 1958 Geneva Conventions for the reason that they were not involved in their
negotiation. This proved to be an important driver for the commencement of the
negotiations on the UNCLOS. The current situation with China is nevertheless very
different. As a formal re-negotiation of the UNCLOS is at present simply not
considered by the international community, China appears to pursue a strategy of
optimizing its prerogative to interpret international law, which is in certain cases
stretched to such an extent that it amounts to de facto re-interpretation.
122
The opposite of what appears to be happening with China and CCAMLR can
occur as well. The best known example is IWC, which is admittedly not an RFMO/
A. Due to the deteriorating status of many whale species and stocks, IWC membership started to expand with conservation-oriented States in the late 1970s until the
required ¾ majority for adopting a non-time bound moratorium on commercial
whaling crystallized in 1982. This rapid expansion in membership was facilitated
by the absence in the ICRW of any formal rules on eligibility requirements and
criteria, and procedures on accession.
123 This also explains why the constitutive
instrument of the North Atlantic Marine Mammal Commission (NAMMCO)
124
—
which was adopted within a few months after Iceland notified its withdrawal from
the ICRW in 1991—stipulates that other States can accede “with the consent” of the
Founding Fathers.
125
Reference should in this context be made to Japan’s recent notification of
withdrawal from the ICRW—effective on 30 June 2019
126
—and its intention to
subsequently resume commercial whaling in its own maritime zones.
127 Many States
122 Cf., e.g., Rühlig (2018). See also the Final Report (2018) of the International Law Association
(ILA) Committee on Baselines under the International Law of the Sea (available at http://www.ilahq.org ), at footnotes 246 and 264, and p. 33 by which Committee member Yee takes the view that
“the regime of continental States’ outlying archipelagos as units is already established under
customary international law” referring in this regard to the study by the Chinese Society of
International Law “The South China Sea Arbitration Awards: A Critical Study” (2018) 17 Chinese
Journal of International Law 207, 475–552.
123 Art. X(2) of the ICRW, note 4 supra.
124 Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in
the North Atlantic, Nuuk, 9 April 1992. In force 8 July 1992 (1945 UNTS 3).
125 Art. 10(2).
126 Information available at https://iwc.int/statement-on-government-of-japan-withdrawal-from-t.
For a discussion, see Guggisberg (2019).
127 See the Statement by the Chief Secretary of the Cabinet of the Prime Minister of Japan, available
at https://japan.kantei.go.jp/98_abe/decisions/2018/_00008.html.
106
E. J. Molenaar
main global powers; if not the main. China may also have similar arguments in
relation to the international law of the sea more in general, or even international law
as such.
Such arguments bear some similarity with the arguments advanced by newly
independent States during and after the post-World War II process of decolonization.
These States did not accept the then existing international law of the sea as laid down
in the 1958 Geneva Conventions for the reason that they were not involved in their
negotiation. This proved to be an important driver for the commencement of the
negotiations on the UNCLOS. The current situation with China is nevertheless very
different. As a formal re-negotiation of the UNCLOS is at present simply not
considered by the international community, China appears to pursue a strategy of
optimizing its prerogative to interpret international law, which is in certain cases
stretched to such an extent that it amounts to de facto re-interpretation.
122
The opposite of what appears to be happening with China and CCAMLR can
occur as well. The best known example is IWC, which is admittedly not an RFMO/
A. Due to the deteriorating status of many whale species and stocks, IWC membership started to expand with conservation-oriented States in the late 1970s until the
required ¾ majority for adopting a non-time bound moratorium on commercial
whaling crystallized in 1982. This rapid expansion in membership was facilitated
by the absence in the ICRW of any formal rules on eligibility requirements and
criteria, and procedures on accession.
123 This also explains why the constitutive
instrument of the North Atlantic Marine Mammal Commission (NAMMCO)
124
—
which was adopted within a few months after Iceland notified its withdrawal from
the ICRW in 1991—stipulates that other States can accede “with the consent” of the
Founding Fathers.
125
Reference should in this context be made to Japan’s recent notification of
withdrawal from the ICRW—effective on 30 June 2019
126
—and its intention to
subsequently resume commercial whaling in its own maritime zones.
127 Many States
122 Cf., e.g., Rühlig (2018). See also the Final Report (2018) of the International Law Association
(ILA) Committee on Baselines under the International Law of the Sea (available at http://www.ilahq.org ), at footnotes 246 and 264, and p. 33 by which Committee member Yee takes the view that
“the regime of continental States’ outlying archipelagos as units is already established under
customary international law” referring in this regard to the study by the Chinese Society of
International Law “The South China Sea Arbitration Awards: A Critical Study” (2018) 17 Chinese
Journal of International Law 207, 475–552.
123 Art. X(2) of the ICRW, note 4 supra.
124 Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in
the North Atlantic, Nuuk, 9 April 1992. In force 8 July 1992 (1945 UNTS 3).
125 Art. 10(2).
126 Information available at https://iwc.int/statement-on-government-of-japan-withdrawal-from-t.
For a discussion, see Guggisberg (2019).
127 See the Statement by the Chief Secretary of the Cabinet of the Prime Minister of Japan, available
at https://japan.kantei.go.jp/98_abe/decisions/2018/_00008.html.
106
E. J. Molenaar