The Rule of Law and the United Nations Convention on the Law of the Sea

Bernard H. Oxman ¹

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No problem is more important or more vexing for international lawyers than that of promoting the rule of law in international affairs. International law is criticized by our colleagues in the academy and at the bar as excessively indeterminate and incomplete in its substance, as undemocratic and beholden to displays of power in its means of formation, and as so rarely subject to mandatory interpretation and application by disinterested and authoritative tribunals as to call into question its capacity to substitute law and legal process for resort to violence and coercion. Some who encounter the system, including national legislators and judges, respond by dismissing international law as more political than legal and by regarding the idea of promoting the rule of law in international affairs as too abstract and idealistic to warrant practical contributions on their part.

In the last half century, this cynicism has been stoked by upheavals in the law of the sea. There was, and to some extent remains, a widespread perception that a coastal state dissatisfied with the international law of the sea is free to change the law itself by making and enforcing a unilateral claim at any time, perhaps de facto at first but ultimately de jure.² Elegant theories of customary international law are deployed to reinforce that view, distressingly even by lawyers with no ethical obligation to defend the interests of a client. It should come as no surprise that so many national legislators and judges in the past half-century did not regard themselves as seriously constrained by the customary law of the sea where such constraint would limit their options in important ways. And it should come as no surprise that the primary source of opposition to ratification of treaties on the law of the sea is the desire to retain a free hand to act unilaterally and change the law by force or threat.

The welcome willingness of neighboring coastal states to resolve the geographic boundaries of their respective claims by peaceful negotiation, conciliation, arbitration or adjudication on the basis of international law should be contrasted with what, until now, has been a general unwillingness to display similar restraint with respect to unilateral jurisdictional claims as such, including claims of right erga omnes. More than once since the founding of the United Nations fifty years ago, lives have been lost, armed conflict has erupted, and friendly relations have been disrupted over basic jurisdictional issues of the law of the sea, including passage rights, freedom of navigation, and fishing rights. The failure of the community of states to deal effectively with the burgeoning resort to the unilateral use or threat of force to effect, and to resist, changes in the law of the sea would have to be counted among the failures to realize the principles and purposes of the United Nations.

It should therefore be an occasion for celebration that the international community is on the verge of converting that failure into a resounding success. This success responds to many of the principal criticisms of international law and to many of the principal reasons for cynicism about the rule of law in international affairs. The entry into force of the United Nations Convention on the Law of the Sea³ should be welcome news to all those who wish to strengthen the rule of law in international affairs.

The Convention promises to advance the rule of law in five basic ways:

· Global ratification of the Convention would, for the first time, formally commit the nations of the world to a common articulation of the rules of international law governing two-thirds of the planet, providing a common platform of principle and common institutional means for implementing and developing those rules.

· Global ratification of the Convention would represent a major achievement for the efforts of the United Nations, begun almost fifty years ago, to promote the codification and progressive development of international law by peaceful multilateral negotiation with the participation of all states and with respect for all relevant interests and perspectives, and would extend that process to the future development of the law of the sea, effectively delegitimating the `claim what you like' cynicism of the past.

· Global ratification would unite the nations of the world in the most comprehensive and far-reaching treaty for protection of the global environment yet achieved, establishing a clear and inexorable link between the rule of law in international affairs and the preoccupation of people everywhere to ensure that their children inherit a safe and healthy home.

· Global ratification would minimize legal obstacles to navigation and communications necessary to implement the objectives of the United Nations both with respect to the maintenance of international peace and security and with respect to the promotion of economic development, environmental protection and other common goals.

· Global ratification would commit the nations of the world to accept the submission to international arbitration or adjudication of most disputes arising under the Law of the Sea Convention that are not settled by other means.

I. Global Ratification

The United Nations Convention on the Law of the Sea is now in force for a substantial number of states.⁴ While the 60 states that initially brought the Convention into force were almost exclusively developing countries of Africa, Asia and Latin America, the fear that few, if any, industrial states would participate in the Convention was eliminated a year ago with the conclusion, and endorsement by the General Assembly of the United Nations, of the Agreement Relating to the Implementation of Part XI of the Convention.⁵ The number of parties to the Convention is expected to increase significantly in the coming year.⁶

It is important, however, to bear in mind the difference between substantial ratification and the goal of global ratification. The position that the Convention is the best evidence of the customary international law of the sea is a useful one for filling the gap pending global ratification, and may even be useful thereafter for dealing with such nonparties as remain. But, from the perspective of strengthening the rule of law, the customary law position is no substitute for the goal of global ratification. If the past is any guide at all, customary law is unlikely to provide a regime for the sea that entails the stability and restraint we associate with the rule of law. Moreover, customary law may well omit important technical details and almost certainly omits key structural elements of the Convention.

Some of the most significant contributions of the Convention to strengthening the rule of law in international affairs relate to process rather than to the substance of particular rules. The core idea of the Convention is a fundamental shift to multilateralism from unilateralism in the development of the law of the sea. Basic to the Convention's structure are numerous duties to report to, consult, obtain approval from, and respect rules promulgated by various international organizations, including not only the International Sea-Bed Authority but other competent international organizations, including the International Maritime Organisation.⁷ The Convention mandates arbitration or adjudication of most unresolved disputes. For both legal and practical reasons, realization of all these contributions depends upon ratification.

Global ratification is by no means assured. At best, it is unlikely to be achieved for several more years. In the interim, governments, legislators and interest groups will scrutinize the emerging interpretations and applications of the Convention as they attempt to reach a final determination. Those who have already chosen sides will seek every possible source, however unwitting, to bolster their argument. In particular, those who are reluctant to embrace the shift from unilateralism to multilateralism will look for any sign that their own interests are better served by remaining outside the Convention.

In considering treaties, members of parliaments are sometimes more concerned with the restraints that may be imposed on their own perceived freedom of action in some particular respect than with the overall benefits of regulating the behavior of other states under the treaty.⁸ Ratification of so-called law-making treaties especially may suffer from the seductive temptation to regard them as `generally' declaratory of customary international law while preserving the theoretical option not to regard some particular rule in the treaty as declaratory of customary law should the need arise.

This means that those who wish to realize fully the contributions of the Convention to the rule of law will need to exercise restraint and wisdom in at least the immediate future lest they complicate the ratification process in one or more states. Politically, this suggests caution regarding the organization, composition and budgets of the new institutions established by the Convention. Legally, this suggests restraint in speculating on the meaning of the Convention or on possible differences between the Convention and customary law.

The Convention is an easy target. Like many complex bodies of written law, it is amply endowed with indeterminate principles, mind-numbing cross-references, institutional redundancies, exasperating opacity and inelegant drafting, not to mention a potpourri of provisions that any one of us, if asked, would happily delete or change. The trick, as we are fond of saying in the United States, is to `keep your eye on the ball.' For those of us for whom strengthening the rule of law is the goal, and global ratification of the Convention is the means, it is essential to measure what we say in terms of its effect on the goal. Experienced international lawyers know where many of the sensitive nerve endings of governments are. Where possible, they should try to avoid irritating them.

This does not mean lawyers should abandon their clients, judges should misstate the law, or the academy should muzzle debate. What it does mean is that it is appropriate, indeed perhaps obligatory, for each to bear in mind his or her ethical obligation to consider the effect on the rule of law in carrying out his or her functions.

Good lawyers routinely warn their clients about the risks of compromising their long-term interests in dealing with the problem at hand. Where those clients may have an interest in the promotion of the rule of law in international affairs generally, or in global ratification of the Law of the Sea Convention in particular, it is entirely appropriate to alert them to actions or statements that may prejudice that interest.

Wise judges routinely consider the implications of their decisions for the rule of law. If only as general background informing their approach, judges and arbitrators in cases between states may also be obliged to think about the principles and purposes of the United Nations Charter that bind the parties before them in their relations with each other and with other states.⁹

But in the end, of course, judges must do their duty and decide the cases before them on the basis of the law as they understand it. It is therefore ironic that while one of the most significant contributions of the Law of the Sea Convention to the rule of law is its requirement for adjudication or arbitration of disputes, the prospects for global ratification of the Convention may be placed in jeopardy by litigation in this delicate interim period, particularly with or between nonparties, over maritime jurisdictional issues (other than maritime boundaries between neighboring states).¹⁰ The reason is that if the Court decides that the applicable rule of customary law is different from that in the Convention,¹¹ those who prefer the Court's version of that rule, or who hope to establish a similar distinction between customary law and the Convention with respect to some other rule, may be encouraged to oppose ratification of the entire Convention. And if the Court, or some other tribunal, decides that the applicable rule is the rule contained in the Convention or the equivalent, and proceeds to interpret the rule, the result may offend some interests sufficiently to encourage them to oppose ratification of the Convention on the grounds of that opinion alone.

These are risks about which courts and tribunals can do little if anything. This was one of many reasons why some of us were relieved when Denmark and Finland settled their dispute over the bridge traversing the Danish straits.¹² A settlement of the fishing dispute between Canada and Spain and the European Community would be even more welcome, particularly in light of the conservation and enforcement rules elaborating on the Convention that emerged from the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks.¹³

In making these observations, I do not dissent from the view that the development of international law benefits from more cases and decisions by the Court. My view is simply that, because of its compromissory clauses, a globally ratified Convention promises many more cases in the future, and that it would be unfortunate if one or two cases during this delicate interim period, when so many governments are considering ratification, had the effect of prejudicing that promise.

Healthy unrestricted debate is properly regarded as an indispensable condition for informed decision-making. We traditionally look to both the academy and the bar to play leading roles in that debate. But we look to them not only for truth but for perspective and judgment. Any law student should be able to demonstrate countless defects in virtually any legal instrument. But it takes an accomplished lawyer to fashion a transaction that is sturdy and durable, and an accomplished thinker to tell us what is wise. One of the many qualities that distinguishes them from the young student is that they have learned to distinguish between what is, and what is not, of the essence. They have also learned that what they regard as relatively minor or even advantageous may be so offensive to someone else as to prompt behavior that they might consider undesirable or irrational. They have learned how to avoid that problem in other situations in a manner consistent with their professional and ethical obligations and standards. If they consider the goal of global ratification, and the concomitant strengthening of the rule of law, as worthy of their efforts and restraint, they should apply that learning here.

Against this background, it may be useful to take a somewhat closer look at the principal contributions to the strengthening of the rule of law of a globally ratified Convention on the Law of the Sea

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1 Professor of Law, University of Miami School of Law. The author served as U.S. Representative and Vice-Chairman of the U.S. Delegation to the Third U.N. Conference on the Law of the Sea, and as chairman of the English Language Group of the Conference Drafting Committee. The views expressed herein are his own. An earlier version of this paper was presented at The Hague on 14 July 1995 at a joint meeting of the American Society of International Law and the Netherlands Society of International Law.

2 Some might contend that reliance in the North Sea Continental Shelf cases on the 1945 Truman Proclamation (an unprecedented unilateral claim by a world power) as the source of relevant principles, rather than on the Convention on the Continental Shelf that emerged from the work of the International Law Commission and the 1958 Conference on the Law of the Sea, unintentionally contributed to this view. Reliance by the Court on the United Nations Convention on the Law of the Sea in subsequent cases, albeit at the invitation of the parties to the dispute at times, would seem to go some distance to accommodate the structural concerns expressed in this regard by the late Judge Manfred Lachs in his dissenting opinion in the North Sea cases. North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark, Federal Republic of Germany/Netherlands), 1969 I.C.J. 3; Pres. Proc. 2667, Sep. 28, 1945, 19 Fed. Reg. 12303 (1945).

3 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122 (1982), reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales. No. E.83.V.5 (1983), and U.S. Senate Treaty Doc. 103-39 (1994) (hereinafter the Convention).

4 There were 83 ratifications, accessions and notifications of succession as of December 1, 1995.

5 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, opened for signature Jul. 29, 1994, adopted by GA Res. 48/263 (July 28, 1994), reprinted in U.S. Senate Treaty Doc. 103-39 (1994).

6 These prospects probably have been enhanced by the outcome of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks convened on the recommendation of the United Nations Conference on the Environment and Development.

7 This is particularly true of its safety and environmental provisions.

8 To an outside observer, Chile presents a dramatic example of this problem. Chile is a paradigm beneficiary of the overall accommodation of coastal and maritime interests set forth in the Convention. For geographic reasons, its security and economic interests are especially dependent upon the navigation and communications rights protected by the Convention, while its actual and likely coastal resource and environmental interests are amply protected by the Convention as well. Since originating the concept, Chile has consistently emphasized the importance of freedom of navigation and overflight in the 200-mile zone, while its neighbors immediately to the north either equivocate or reject that view. Yet the current public debate in Chile at times appears to be consumed neither by securing Chile's communications links with the rest of the world, nor by the connection between such communication links and Chile's hopes for expansion of trade and participation in NAFTA, but by the chimera of claiming a mar presencial of uncertain content beyond Chile's exclusive economic zone.

9 Sometimes, as in the Guinea/Guinea Bissau arbitration, the analysis and outcome seem to be in harmony with the larger purposes of the Charter and international law. Award of 14 February 1985 of the Arbitration Tribunal for the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, 25 Int'l L. Mat. 252 (English translation of official French text). At other times, as in the North Sea Continental Shelf cases , the Court's reasoning may have complicated the negotiation of maritime boundaries. The reliance of both Australia and the United States, among others, on geological and geomorphological factors in their boundary claims against their neighbors was reinforced, if not stimulated, by dicta in the North Sea cases. Australia was able to implement its theory to some extent in a boundary agreement with Indonesia, but thereafter retreated somewhat in other agreements, presumably in the face of the Court's own retreat in the Tunisia/Libya and Libya/Malta cases. In the Gulf of Maine case, a chamber of the Court rejected both the U.S. and the Canadian claims. North Sea Continental Shelf Cases, note 1 supra; Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 I.C.J. 18; Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 I.C.J. 13; Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine (Canada/United States), 1984 I.C.J. 246.

10 The Convention articulates no substantive standard, as such, with respect to the delimitation of the exclusive economic zone and the continental shelf between neighboring states apart from that contained in international law, and thus has been regarded by the Court as not purporting to alter the applicable rules of international law. On the other hand, other developments in international law contained in the Convention, such as the exclusive economic zone, have influenced the manner in which the Court approaches delimitation problems. This is evident, for example, in the opinion of the Court in the Libya/Malta case (ibid.).

11 The Convention itself reveals the sensitivity of states with respect to this problem. Most of its jurisdictional rules refer to `States' rather than `States Parties.' A suggestion by some landlocked and `geographically disadvantaged' states that the texts regarding the exclusive economic zone refer to `States Parties' was resisted by certain coastal states. In addition, one of the reasons that the Convention does not permit reservations was the fear, based on the reasoning of the Court in the North Sea Continental Shelf cases, that permitting reservations could prejudice the customary law status of the affected provisions. North Sea Continental Shelf Cases, note 1 supra.

12 Case concerning Passage through the Great Belt (Finland v. Denmark), 1992 I.C.J. 348 (order removing case from the list).

13 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc. A/CONF.164/38 (Sep. 7, 1995) (Final Act).

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