Implementing UNCLOS: Legislative and Institutional Aspects at a National Level

Transcription

1 Implementing UNCLOS: Legislative and Institutional Aspects at a National Level Prof. Ronán Long National University of Ireland Galway Human Resources Development and Advancement of the Legal Order of the World's Oceans 28 Nov 3 Dec 2014, Tokyo, Japan The Convention has served the world well it has brought order and peace. We should faithfully abide by the Convention. We should refrain from under mining it by deviating from it in our domestic laws and practices. We should also refrain from adopting a selective approach towards the Convention, i.e., choosing to abide by theprovisionswelikeandignorethose we do not like. As the former President of UNCLOS iii, I would like to appeal to all states and to scholars on the law of the sea, to comply faithfully with the Convention. T. Koh Setting the Context: A Globalized World in M. Nordquist et al., Freedom of Navigation and Globalization (Leiden/Boston: Nijhoff, 2014) p.6 1

2 Relationship UNCLOS & National Law (1) States are free to choose how to give effect to international obligations Monism / Dualism Means of transformation/incorporation is a question of national law Prohibition on Reservations / Exceptions (Art 309) UNCLOS & National Law (2) Art 27 VCLT 1969 A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Pacta Sunt Servanda 2

3 UNCLOS & National Law (3) Close involvement by national officials in the treaty making process, SPLOS, and the work of LOS institutions Attention to national implementation at an early stage Parliamentary scrutiny before signature & ratification Incorporation by means of specialist law Incorporation 1. Will depend on legal tradition of State 2. Not practicable to incorporate all of the provisions of UNCLOS into one piece of national law in common law jurisdictions 3. Alternative is to directly incorporate parts of the Convention expressly into national legislation (maritime zones, fisheries, etc) 4. Include parts of the Convention in a schedule to the legislation or specify that implementation of the legislation is to be guided by provisions in the Convention 3

4 Examples Baselines EEZ Outer Continental Shelf Dispute Settlement New Challenges! Baselines Normal is low water line (Art 5) as depicted on largescale charts officially recognised by coastal State (LAT) Coastal States discretion straight baselines (Art 7) 2 Qatar v. Bahrain [2001] I.C.J. Rep.40 at para.40 The method of straight baseline delineation codified in the 1982 LOS Convention must be applied restrictively and is an exception to the normal rules for the determination of baselines Due publicity & deposit copy with Sec Gen (Art 16) 4

5 Baselines 1. Most recent chart provides good documentary evidence of LW line, but other evidence considered by courts / tribunals Guyana v Surinam 47 ILM (2008) para 396 & Report of Committee LOS ILA Do you need to change national law in light of climate change? Sea defences (17% NL) & reclaimed areas (Singapore & Malaysia) Report of Committee LOS ILA 2012 (new committee) D. Anderson baselines in Modern Law of the Sea in M. Nordquist et al., Freedom of Navigation and Globalization (Leiden/Boston: Nijhoff, 2014) EEZ May proclaim/declare EEZ (Art 56) Adopt national laws on exercise of sovereign rights such as on conservation and management of fisheries, exploitation of hydrocarbons / energy resources Jurisdiction MSR / marine environment Coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of UNCLOS (Art 56 (2)) 5

6 Outer Continental Shelf Article 76 per se.does not require specific national law Procedures for making submission to CLCS requires national arrangements Outer Continental Shelf 75 submissions - Article partial and 5 joint submissions (no national law) Potential for 99 submissions or more Backlog & resources 6

7 National Law & CLCS Recommendations Commission has made 20 recommendations 4 States (Ireland, Mexico, Philippines and Australia) have deposited with the Secretary-General the outer limits of their continental shelf established on the basis of the recommendations of the Commission. This requires specific national law (Art 76(9)). Payments to the Authority in relation to exploitation of continental shelf beyond 200 miles. National law (Art 82). Dispute Settlement Different approaches to dispute settlement mechanisms at UNCLOS III 1. Retain independence of state parties regarding means of settlement 2. Need for binding settlement 1982 Convention provisions are a compromise between 1 and 2 Third United Nations Conference on the Law of the Sea Source: UN Audio Visual Library 14 7

8 Part XV UNCLOS States Parties shall settle any dispute... concerning interpretation and application of Convention by peaceful means...in accordance with Charter of United Nations... and by means of Art 33(1) therein [Art. 279] 15 Settlement of Disputes under PART XV 1. CONSENSUAL SETTLEMENT Section 1 of Part XV [Arts ] 2. COMPULSORY SETTLEMENT Section 2 of Part XV [Arts ] 16 8

9 Consensual Settlement 1. Negotiation 2. Third party settlement : a. Inquiry b. Mediation c. Conciliation 3. Regional or bilateral agreements (eg. OSPAR Convention) 17 Choice of Procedure Article 287 International Tribunal for the Law of the Sea Annex VI International Court of Justice Compulsory Procedures Entailing Binding Decisions Arbitral Tribunal Annex VII Special Arbitral Tribunal Annex VIII 18 9

10 Dispute Settlement Declarations Written declarations submitted by States when signing, ratifying or acceding the Convention (Article 287) (47 States): ITLOS [34 as first choice] ICJ [19 as first choice, 5 as second choice, 2 as third choice] Annex VII Arbitration [7 as first choice, 2 as second choice] Annex VIII Arbitration [6 as first choice, 3 as second choice, 1 as third choice] 19 Challenges Implementation Drift! Globalisation & principle of interdependence Climate change, food security, irregular migration by sea 10

11 Summary States must adopt national laws that are consistent with UNCLOS. States ought to reform laws that are inconsistent with UNCLOS. State practice is evolving continuously. States can protest measures adopted by other States that are inconsistent with international law. True to the letter and spirit of 1982 Convention? Thank You 11