and asking States to implement them, but on the other, the Council has also adopted
resolutions granting derogations from essential rules, such as the exclusive jurisdiction of the flag State on the high seas or the exclusive jurisdiction of the coastal State
in its territorial sea. These authorizations have enabled the evolution of practice at
sea, but they are based on exceptions, derogations granted on a case-by-case basis.
Therefore, can the UNSC’s influence on the evolution of the Law of the Sea go so far
as to lead to a modification of the rule? This examination questions the links between
these resolutions and the formal sources of international law. Can these resolutions
really lead to a modification of the fundamental rules applicable at sea, in particular
create new customary rules?
The evolution of practice at sea is clear, but the exemption clauses contained in
the Security Council’s resolutions excluding the formation of a customary norm are
challenging. Indeed, when the UNSC authorises Member States to enter Somali
territorial waters to combat armed robbery
8 or when it authorises the boarding of
foreign ships in the high seas,
9 the Council indicates that these resolutions “shall not
affect the rights or obligations or responsibilities of Member States under international law”
10 and “shall not be considered as establishing customary international
law”.
11 In doing so, the Security Council is affecting the scope of its own contribution to the evolution of the Law of the Sea. Nevertheless, when the Law of the Sea is
limited and does not provide adequate legal tools, the recourse to the UNSC has been
an efficient alternative to fight crimes at sea and a valid legal solution, especially
because it offers States a title for intervention when the Law of the Sea does not.
The UNSC has thus developed significant practice in either supporting general
rules governing the Law of the Sea or derogating from them. In itself, this is already
a contribution to the evolution of the Law of the Sea. But the contribution would be
even greater if the practice resulted in the evolution of the rule itself. Investigating
the possibility of a modification of the rules under the influence of UNSC resolutions
leads to a contrasted conclusion: while its action often impacts the International Law
of the Sea and the practice of States (Sect. 2), it is real contribution to the evolution of
rules is impeded by a general attitude of self-limitation (Sect. 3).
8 Resolution 1816 (2008), 6 November 2008.
9 See Pancracio (2018), pp. 31–41.
10 Resolution 1816 (2008), para. 9.
11 Resolution 2146 (2014), 19 March 2014, para. 9.
10 Security Council’s Contribution to the Evolution of the Law of the Sea: Avant. . .
179
resolutions granting derogations from essential rules, such as the exclusive jurisdiction of the flag State on the high seas or the exclusive jurisdiction of the coastal State
in its territorial sea. These authorizations have enabled the evolution of practice at
sea, but they are based on exceptions, derogations granted on a case-by-case basis.
Therefore, can the UNSC’s influence on the evolution of the Law of the Sea go so far
as to lead to a modification of the rule? This examination questions the links between
these resolutions and the formal sources of international law. Can these resolutions
really lead to a modification of the fundamental rules applicable at sea, in particular
create new customary rules?
The evolution of practice at sea is clear, but the exemption clauses contained in
the Security Council’s resolutions excluding the formation of a customary norm are
challenging. Indeed, when the UNSC authorises Member States to enter Somali
territorial waters to combat armed robbery
8 or when it authorises the boarding of
foreign ships in the high seas,
9 the Council indicates that these resolutions “shall not
affect the rights or obligations or responsibilities of Member States under international law”
10 and “shall not be considered as establishing customary international
law”.
11 In doing so, the Security Council is affecting the scope of its own contribution to the evolution of the Law of the Sea. Nevertheless, when the Law of the Sea is
limited and does not provide adequate legal tools, the recourse to the UNSC has been
an efficient alternative to fight crimes at sea and a valid legal solution, especially
because it offers States a title for intervention when the Law of the Sea does not.
The UNSC has thus developed significant practice in either supporting general
rules governing the Law of the Sea or derogating from them. In itself, this is already
a contribution to the evolution of the Law of the Sea. But the contribution would be
even greater if the practice resulted in the evolution of the rule itself. Investigating
the possibility of a modification of the rules under the influence of UNSC resolutions
leads to a contrasted conclusion: while its action often impacts the International Law
of the Sea and the practice of States (Sect. 2), it is real contribution to the evolution of
rules is impeded by a general attitude of self-limitation (Sect. 3).
8 Resolution 1816 (2008), 6 November 2008.
9 See Pancracio (2018), pp. 31–41.
10 Resolution 1816 (2008), para. 9.
11 Resolution 2146 (2014), 19 March 2014, para. 9.
10 Security Council’s Contribution to the Evolution of the Law of the Sea: Avant. . .
179