The publication of the inaugural volume of the Portuguese Yearbook of the Law of the Sea is an important milestone for ipdm (Portuguese Institute of the Law of the Sea), a non-profit organization that focuses on the study and promotion of the law of the sea globally, and supporting young scholars and capacity building activities.
The publication of the Yearbook is part of ipdm’s goal to encourage quality research, and has been made possible through the generous support of Instituto Miguel Galvão Teles at Morais Leitão, Galvão Teles, Soares da Silva & Associados, to whom the Institute and the Editors of the Yearbook are incredibly grateful.
This first volume is published two years after ipdm’s inception, in 2022, auspiciously, the same year the United Nations Convention on the Law of the Sea (unclos) celebrated its fortieth anniversary since its signing.
Unfortunately, this issue is also a much deserved and heartfelt tribute to Professor Alan Boyle, who passed away in 2023. Alan was a strong supporter of the Institute and the first person to join the Editorial Board of the Yearbook. He was an enthusiast of the journal and promptly volunteered his well-known rigorous review standards. Alan was a much admired and respected colleague, who will be sadly missed by all, and especially by those who were fortunate to meet and know him.
The Yearbook focuses on all aspects of the law of the sea, with a three-section format, namely (i) in-depth scholarly articles and short articles, (ii) analysis of current legal developments, and (iii) book reviews. This being the inaugural volume of the Yearbook, the Editorial Board decided to mark the occasion by including a wider collection of scholarly articles written by international experts on the law of the sea.
The first article in this issue of the Yearbook begins with a short piece by Alfred H.C. Soons on baselines in the context of sea-level rise. One of the key takeaways of this article is that the ambulatory nature of the normal baseline is enshrined in article 5 of unclos, and that the ongoing debate on this provision is about changing the law, rather than what the current law is. Soons points out that the change in the interpretation and application of this provision, without amending the Convention, might lead to a tacit amendment by subsequent State practice.
The second article is authored by Robin Churchill and addresses the contribution of Portugal to the development of the law of the sea in western Europe, particularly between the fifteenth and seventeenth centuries. Churchill chronicles the Portuguese voyages of discovery to demonstrate how they led to the ‘Battle of the Books’, from which the modern law of the sea gradually emerged.
The third article is by Fernando Loureiro Bastos and undertakes a detailed review of the evolution of the Portuguese law of the sea doctrine in the past two centuries. It is interesting to note that despite the Portuguese precursory influence described by Robin Churchill in shaping what would eventually become the contemporary law of the sea, the attention granted by Portuguese jurists to the law of the sea has been extremely limited in the past two hundred years. Loureiro Bastos rightfully notes that despite the pioneering scholarly work of Carlos Testa and Vicente Almeida d’Eça in the late-nineteenth and early-twentieth centuries, the interest for the law of the sea only began in earnest with Armando M. Marques Guedes from the 1980s onwards, as a result of the transformative impact of the Third United Nations Conference on the Law of the Sea.
Moving on from the historical perspective on the evolution of the law of the sea, Yoshifumi Tanaka writes on the resilience of unclos to address issues that were unknown at the time. Tanaka refers that safeguarding the resilience of unclos is a crucial issue in the law of the sea and identifies three basic approaches to that effect, namely, resilience through interpretation, law-making, and jurisprudence. After examining each one of these approaches, Tanaka concludes that they are not mutually exclusive, and that their combination can, in fact, open the way to ensuring resilience of unclos.
Looking at the recently approved text of the third implementing agreement of unclos for the conservation and sustainable use of marine biodiversity beyond national jurisdiction (bbnj Agreement), Joanna Mossop examines the respective dispute settlement provisions. As an independent academic adviser on the New Zealand delegation during the negotiations of the bbnj Agreement, Mossop provides a valuable insight to the rules included in Part ix of that Agreement and to the key issues that arose during negotiations in the context of dispute settelement. Mossop underlines that Part ix was a compromise, and that some issues regarding these provisions will need to be dealt with by international courts and tribunals as disputes arise. Mossop’s ground-breaking article is a must read to better understand the adopted provisions and the rationale behind them, providing a unique perspective on this key part of the bbnj Agreement.
In a jointly authored piece, Marco Benatar and Valentin Schatz examine the 2017 judgment of the International Court of Justice on the preliminary objections in the case Maritime Delimitation in the Indian Ocean (Somalia v. Kenya). Contrary to Somalia, that brought the case forward, Kenya favoured a negotiated outcome over adjudication and therefore tried, unsuccessfully, to challenge the jurisdiction of the Court and the admissibility of Somalia’s application. In this article, Benatar and Schatz examine the relevance of the argument put forward by Kenya to challenge the jurisdiction of the Court and its future implications. As pointed out by Benatar and Schatz, this was the first case where a State invoked a Part xv unclos-based jurisdictional challenge. They further highlight the possibility that “the international community could take the Somalia v. Kenya Judgment as an invitation to consider how they wish to regulate the relationship between the icj and unclos tribunals under future agreements.”
Still within the context of maritime delimitation, Irini Papanicolopulu introduces a novel perspective on maritime boundaries after delimitation, directly questioning the assumption that delimitation is always final. Papanicolopulu analyses potential circumstances in which a maritime boundary could be contested after having been delimited by an agreement between States or through international adjudication. In this regard, Papanicolopulu looks at the possibility of a maritime boundary being challenged or not accepted by one of the relevant States, or by a third State. Papanicolopulu also considers the impact of nature on the permanency of maritime boundaries, and if such impact could require adjusting to an existing maritime boundary or a new delimitation process.
The first volume of the Yearbook concludes with an article by Tullio Scovazzi on the regime of enclosed or semi-enclosed seas. Scovazzi examines “the poor substantive content” and the historical background of the provisions dedicated in unclos to enclosed or semi-enclosed seas. The author moves on to examining State practice regarding various forms of regional co-operation in enclosed or semi-enclosed seas, in certain cases through arrangements concluded even before the adoption of the unclos. Scovazzi focuses on State practice in the Mediterranean Sea, and the different applicable legal regimes, but also, the existing gaps in legislation.
Therefore, it is with great pride that the Editors of the Yearbook see this first volume published, offering readers a collection of outstanding scholarly articles written by leading international experts, to whom the Editors are extremely grateful. The Editors sincerely hope that the articles included in the inaugural issue of the Yearbook delight, inform and inspire its readers.
