A significant part of global trade, value creation, energy security and international peace and security depends on the seas and oceans, which cover around 71% of the planet’s surface.1 The same applies to the bulk of internet communications, which rely heavily on submarine cables, and, no less so, to most of the world’s unknown biological resources and biodiversity. A number of challenges and possibilities related to the oceans are highlighted in governmental strategies, including notably the Norwegian Government’s White Paper submitted to the Norwegian parliament in 2017 and the Government’s Updated Ocean Strategy published in 2019.2
There is, in fact, good news as regards the toolbox provided by international law for policy-makers. A comprehensive, unified and universal legal framework exists for ocean and maritime spaces. This framework establishes a system of competencies and possibilities of proactive coordination, further regulation where necessary, and dispute settlement, together with a number of key principles and rules. It successfully promotes and integrates a variety of important goals, which previously could seem irreconcilable. Moreover, any further regulations must be fully consistent with this legal framework and not undermine the existing architecture.3 Instead of lawless black holes, issues of lack of compliance or implementation are unfortunately frequent.
This framework did not appear overnight. It builds on a monumental series of building-blocks, imagine layer upon layer of legal mortar, stemming mainly from State practice and legislation, treaty-making and case-law. The resulting masonry is solid. Its most sophisticated expression is found in the United Nations Convention on the Law of the Sea (UNCLOS).4 Among its stated aims is to make “an important contribution to the maintenance of peace, justice and progress for all peoples of the world,” The number of parties bound by this convention has reached 168 at the time of writing.
Even the relatively few States that have not ratified or acceded to the convention recognize that a number of its provisions reflect international customary law, and thus universally binding norms. This significantly includes the United States of America, which is the State that set in motion modern law-making relating to the continental shelf. This happened on 28 September 1945 with the seminal adoption of what has later consistently been referred to as the Truman Proclamation.5 Subsequently, the United States continued to be at the forefront in spearheading more predictable rules in this domain, in line with momentous technological and economic developments. Key steps included the adoption in 1958 of the Geneva Convention on the continental shelf and, thereafter, the negotiations on the definition and the extent of the continental shelf in UNCLOS article 76 and Annex II. The latter consecrates a method originally suggested by the American geologist Hollis Dow Hedberg, with other additions. Today, the Hedberg formula is most frequently used for defining the outer limits of the continental shelf. The existence of an extensive legal framework applicable to all Arctic waters was confirmed in the Ilulissat Declaration on 28 May 2008 by the coastal States surrounding the central part of the Arctic Ocean, who confirmed their commitment to this extensive legal framework and to the orderly settlement of any possible overlapping claims in the Arctic.
Indeed, there is good news. The broad normative unity and coherence of the international law of the sea is striking. In many areas and on subjects which could be described as potential hotspots of contention or colliding interests, the universal and unified nature of this body of law is regularly demonstrated. This fact is actually often overlooked or, wrongly, just taken for granted. The yearly resolutions of the United Nations General Assembly on the topic of “Oceans and the Law of the Sea” are incidentally the longest of all resolutions adopted by the plenary of the General Assembly. They arguably contain some of the most concrete operative paragraphs for timely adoption of national measures and concerted international action. These resolutions merit careful study and a broader readership.6
As already indicated, some words of caution are nevertheless due. The existence of a considerable number of applicable principles and rules, either as treaty obligations or as customary international law, does not automatically entail that all necessary or adequate regulations and arrangements have been adopted or implemented. Nor does it signify that legal rules are being complied with thanks to appropriate controls and enforcement.
The first word of caution has to do with the fact that many rules of the international law of the sea confer powers – and may be distinguished from rules imposing obligations or duties. In many cases they could also be seen as a road map or a work plan that, in turn, requires adequate action to be taken by the competent national authorities or international organizations, notably in the form of appropriate regulations.
Such rules might to some extent be compared to the operating system of a computer. The latter manages hardware and software resources, but requires additional software or applications to actually enable operations essential for the user. The user would usually not have to bother too much about the operating system, but would instead focus on this “secondary” software. Let us here use a simple yet classic illustration. The law of the sea empowers States to establish exclusive economic zones of 200 nautical miles. Whether to establish such a zone is a sovereign prerogative of the coastal State to decide. The coastal State may choose to establish or keep less comprehensive fisheries or ecological zones, as long as the limits and constraints established in UNCLOS article 311 (2) and (3) are respected, as these require consistency with the key system of the convention.
UNCLOS is often referred to as the international constitution of the oceans. A constitution will still require adoption of legislation and systems of compliance, enforcement and adjudication. Within this framework, there is a considerable potential for creativity, innovation and adaptation to evolving conditions as regards policy formulation. This is also the case for the law of the sea. Moreover, cross-fertilization, helped by comparative studies or various other phenomena of reception of norms, may be particularly useful for States and the competent international organizations considering the adoption of relevant measures.
More good news is that control and compliance may be aided by new advances in technology, science and various forms of know how building on best practices. Satellite tracking and digital advances related to big data are merely catchwords to illustrate the potential for quantum leaps in efficiency, which also have to be accompanied by thoughtful regulators. Yet an example of innovation is the approach taken by Norway in promoting development assistance in the context of definition of the outer limits of the continental shelf.7 Mr. Harald Brekke, member of the Commission of the Limits of the Continental Shelf from its inception in 1997 until 2012, played a key role also in this regard. He is among the contributors to this book on the law of the sea-bed.
This book addresses a need. It concerns a vast number of rapidly developing new challenges and possibilities. It contributes cross-disciplinary perspectives and various academic “angles of attack” on issues that merit further analysis, cross-fertilization and critical inquiry. A long chain of individuals, including practitioners and academics, e.g. geologists, policy-makers, negotiators and arbitrators, has contributed to the constant weaving of a less open textured law of the sea – yet striving at the same time for preserving due flexibility in light of differing geographical and local contexts and conditions. The contributors to this book are participants in this international endeavour. We are therefore sincerely grateful to Catherine Banet for this valuable initiative.
Rolf Einar Fife
The author is solely responsible for this contribution, which was written before the author assumed his current position.
‘The place of the oceans in Norway’s foreign and development policy’ – Meld. St. 22 (2016–2017) Report to the Storting, <https://www.regjeringen.no/contentassets/1b21c0734b5042e489c24234e9927b73/en-gb/sved/stm201620170022000engpdfs.pdf>; and ‘Blue opportunities – The Norwegian Government’s Updated Ocean Strategy’, 3 June 2019, <https://www.regjeringen.no/globalassets/departementene/nfd/dokumenter/strategier/nfd_havstrategi_2019_engelsk.pdf>.
See article 311 (2) and (3) of the United Nations Convention on the Law of the Sea, concluded 10 December 1982, entered into force 16 November 1994, 1833 UNTS 396 (UNCLOS). See also, for example, paras. 6–7 of resolution 72/249 adopted by the United Nations General Assembly on 24 December 2017 on an ‘International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’, UN Doc. A/RES/72/249.
Proclamation No. 2667, ‘Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea-Bed of the Continental Shelf’, 28 September 1945, 10 Fed. Reg. 12303; XIII Bulletin, Dept. of State, No. 327, 30 September 1945, p. 485.
Notably two resolutions adopted in December 2018, respectively ‘Oceans and the Law of the Sea’ (UN Doc. A/RES/73/124) and ‘Sustainable fisheries, including through the 1995 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, and related instruments’ (UN Doc. A/RES/73/125).
R.E. Fife, ‘A Perspective on Development and the Law of the Sea: How to Provide Support for the Establishment of the Outer Limits of the Continental Shelf, in Sainz-Borgo et al (eds.), Liber Amicorum in Honour of Gudmundur Eiriksson, University for Peace, San José, Costa Rica & O.P. Jindal Global University, New Dehli, 2017, 51–67.