4 Shaping the Law of the Sea: Some Final Observations
and Insights
The institutional dynamics of environmental governance is multi-layered and intricate.
68 This chapter has demonstrated the complexity surrounding marine environmental protection. In this respect, several conclusions may be observed. First, while
UNCLOS is the ‘constitution of the oceans’ and remains the starting point for all
aspects pertaining to ocean affairs, not much development with respect to the law of
the sea and marine environmental protection (with the exception of the deep seabed
mining regime and the contribution of ITLOS) takes place within its institutional
framework. Second, the UN system, in particular the UNGA, performs the most
crucial role in furthering ocean governance and marine environmental protection.
Through its various organs, institutions and related agencies, the UN system comprehensively covers all current and emerging concerns relating to the marine environment. Hence, UNGA remains the ‘solid core and serves as the coordinator of
activities and the originator of developments in the law of the sea’.
69
Third, even though the UN carries the weight of developing the law of the sea, it
often does so in a deferred capacity in the place of the UNCLOS regime. This is
simply due to the high political interest involved in key matters pertaining to the
oceans, as well as the fact that the UNGA commands wider global participation. In
the end, even though decisions relating to the law of the sea are negotiated through
the UNGA, the output instruments are often linked and placed under the UNCLOS
regime, which has ample room for evolution depending on the needs and interests of
the international community.
70
Fourth, a substantial amount of support in furthering the cause of marine environmental protection comes from outside the UN family where the UN or its related
agencies have little influence over its shape and direction. Nevertheless, the UN still
maintains inroads in creating the necessary framework by setting up or encouraging
regional initiatives. Fifth, although this was not thoroughly considered in this
chapter, it would be interesting to examine the functions and mandates of subsidiary
advisory bodies in the decision-making and law-making processes of the regimes
outlined above. For instance, the LTC has an influential role within the ISA set-up,
while the MEPC and MSC actively contribute to the outcomes arrived at in the IMO.
The level of deference that a particular regime grants to its’ expert bodies will
undoubtedly influence the direction and pathways it eventually adopts.
Sixth, the initiatives that are taken outside UNCLOS and the UN system,
although largely autonomous and not subservient to the latter, always remain guided
by (and to some extent restricted to) the objectives and purposes defined by the latter.
Seventh, the concern of fragmentation and the resulting multiplicity and overlap
68 Hey (2007), p. 753.
69 de La Fayette (2006), p. 74.
70 Boyle (2006), pp. 61–62.
3 International Organizations and the Protection of the Marine Environment
53
and Insights
The institutional dynamics of environmental governance is multi-layered and intricate.
68 This chapter has demonstrated the complexity surrounding marine environmental protection. In this respect, several conclusions may be observed. First, while
UNCLOS is the ‘constitution of the oceans’ and remains the starting point for all
aspects pertaining to ocean affairs, not much development with respect to the law of
the sea and marine environmental protection (with the exception of the deep seabed
mining regime and the contribution of ITLOS) takes place within its institutional
framework. Second, the UN system, in particular the UNGA, performs the most
crucial role in furthering ocean governance and marine environmental protection.
Through its various organs, institutions and related agencies, the UN system comprehensively covers all current and emerging concerns relating to the marine environment. Hence, UNGA remains the ‘solid core and serves as the coordinator of
activities and the originator of developments in the law of the sea’.
69
Third, even though the UN carries the weight of developing the law of the sea, it
often does so in a deferred capacity in the place of the UNCLOS regime. This is
simply due to the high political interest involved in key matters pertaining to the
oceans, as well as the fact that the UNGA commands wider global participation. In
the end, even though decisions relating to the law of the sea are negotiated through
the UNGA, the output instruments are often linked and placed under the UNCLOS
regime, which has ample room for evolution depending on the needs and interests of
the international community.
70
Fourth, a substantial amount of support in furthering the cause of marine environmental protection comes from outside the UN family where the UN or its related
agencies have little influence over its shape and direction. Nevertheless, the UN still
maintains inroads in creating the necessary framework by setting up or encouraging
regional initiatives. Fifth, although this was not thoroughly considered in this
chapter, it would be interesting to examine the functions and mandates of subsidiary
advisory bodies in the decision-making and law-making processes of the regimes
outlined above. For instance, the LTC has an influential role within the ISA set-up,
while the MEPC and MSC actively contribute to the outcomes arrived at in the IMO.
The level of deference that a particular regime grants to its’ expert bodies will
undoubtedly influence the direction and pathways it eventually adopts.
Sixth, the initiatives that are taken outside UNCLOS and the UN system,
although largely autonomous and not subservient to the latter, always remain guided
by (and to some extent restricted to) the objectives and purposes defined by the latter.
Seventh, the concern of fragmentation and the resulting multiplicity and overlap
68 Hey (2007), p. 753.
69 de La Fayette (2006), p. 74.
70 Boyle (2006), pp. 61–62.
3 International Organizations and the Protection of the Marine Environment
53