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Progressive Development of International Law and the Package Deal

Published online by Cambridge University Press:  27 February 2017

Hugo Caminos  and
Michael R. Molitor
Hugo Caminos
Affiliation:
Organization of American States
Michael R. Molitor
Affiliation:
Office of the Special Representative for the Law of the Sea at the United Nations
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Extract

For centuries the law of the sea operated efficiently on the basis of customs that had developed through uniform and consistent state practice and that were considered, in most instances, to be obligatory. It was not until the late 19th century that the evolution of the international community suggested the wisdom of codifying the existing and emerging customary norms. Although the early codification efforts were conducted by learned societies established for such purposes, the resulting studies eventually led to several multilateral treaty negotiations, including the Hague Codification Conference of 1930 and the three United Nations Conferences on the Law of the Sea. The fruits of this evolution from the predominance of custom towards universal treaty law are found principally in the Geneva Conventions of 1958 and, more recently, in the United Nations Convention on the Law of the Sea of 1982.

Type
Perspectives on the New Law of the Sea
Information
American Journal of International Law , Volume 79 , Issue 4 , October 1985 , pp. 871 - 890
Copyright
Copyright © American Society of International Law 1985

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References

1 These research societies were the International Law Association and the Institut de Droit International, both of which were founded in 1873.

2 See Report of the Third Commission: Définition et régime de la mer territoriale, 3 Institut De Droit International, Annuaire (1894); and International Law Association, Report of the Seventeenth Conference Held at Brussels (1895).

3 These studies also influenced the London Naval Conference of 1909 and the 1907 Hague Peace Conference.

4 The four Geneva Conventions of Apr. 29, 1958 are: Convention on the Territorial Sea and the Contiguous Zone, 15 UST 1606, TIAS No. 5639, 516 UNTS 205; Convention on the High Seas, 13 UST 2312, TIAS No. 5200, 450 UNTS 82; Convention on the Continental Shelf, 15 UST 471, TIAS No. 5578, 499 UNTS 311; and Convention on Fishing and Conservation of Living Resources of the High Seas, 17 UST 138, TIAS No. 5969, 559 UNTS 285.

5 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, reprinted in United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea (UN Pub. Sales No. E.83.V.5) [hereinafter cited as 1982 Convention].

6 Id., Article 311(1) states: “This Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958.”

7 Id., Article 308(1) reads: “This Convention shall enter into force 12 months after the date of deposit of the sixtieth instrument of ratification or accession.” As of July 1, 1985, according to the Office of the Special Representative of the Secretary-General for the Law of the Sea, 20 states had ratified the 1982 Convention.

8 See text accompanying note 71 infra.

9 Those states include the United States, the United Kingdom and the Federal Republic of Germany.

10 Most notably, this relationship surfaced in the North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Judgment of Feb. 20). On this subject, see Sinclair, I. , The Vienna Convention on the Law of Treaties 22–24 (2d ed. 1984)Google Scholar.

11 See, e.g., Gamble, & Frankowska, The 1982 Convention and Customary Law of the Sea: Observations, a Framework, and a Warning, 21 San Diego L. Rev. 491 (1984)Google Scholar; Howard, The Third United Nations Conference on the Law of the Sea and the Treaty / Custom Dichotomy, 16 Tex. Int’l L.J. 321 (1981)Google Scholar; MacRae, Customary International Law and the United Nations’ Law of the Sea Treaty, 13 Cal. W. Int’l L.J. 181 (1983)Google Scholar; D’Amato, An Alternative to the Law of the Sea Convention, 77 AJIL 281 (1983)Google Scholar; and Lee, The Law of the Sea Convention and Third States, 77 AJIL 541 (1983)Google Scholar.

12 As examples of the prevailing view of authors, note the following comments: “The United Nations Law of the Sea Treaty, despite protestations to the contrary, has codified with almost unanimous international consent, customary law of the sea.” MacRae, supra note 11, at 221 – 22. “Most of the general observations of the custom-treaty relationship probably will be applicable to the 1982 Convention.” Gamble & Frankowska, supra note 11, at 496.

13 Gamble & Frankowska, supra note 11, at 492.

14 For an excellent discussion of the traditional relationship between treaties and custom, see Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 Brit. V.B. Int’l L. 275 (1965–66)Google Scholar. On the relationship between the broader subject of general international law and the 1982 Convention, see Orrego, The Law of the Sea Experience and the Corpus of International Law: Effects and Interrelationship, in 18 Law of the Sea Institute, Proc. (Krueger, R. & Riesenfeld, S. eds., forthcoming 1985)Google Scholar.

15 On the role of the consensus procedure at UNCLOS III, see Buzan, Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea, 75 AJIL 324 (1981)Google Scholar; and Vignes, Will the Third Conference on the Law of the Sea Work According to Consensus Rules?, 69 AJIL 119(1975)Google Scholar.

16 1982 Convention, supra note 5, Preamble.

17 Jennings, The Discipline of International Law, in International Law Association, Report of the Fifty-Seventh Conference Held at Madrid 622, 623 (1976)Google Scholar (emphasis added).

18 GA Res. 2467A (XXIII) (Dec. 21, 1968).

19 GA Res. 2574A (XXIV) (Dec. 15, 1969).

20 See generally Miles, The Structure and Effects of the Decision Process in the Seabed Committee and the Third United Nations Conference on the Law of the Sea, 31 Int’l Org. 159 (1977)Google Scholar.

21 GA Res. 2750C (XXV) (Dec. 17, 1970).

22 UN Doc. A/CONF.62/30 (1974).

23 The so-called Gentleman’s Agreement was approved by the General Assembly and appended to the Rules of Procedure. Id at 17. The agreement provides:

Bearing in mind that the problems of ocean space are closely interrelated and need to be considered as a whole and the desirability of adopting a Convention on the Law of the Sea which will secure the widest possible acceptance,

The Conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted.

24 For a compilation of the reports from each of the 11 sessions of UNCLOS III, see Reports of the United States Delegation to the Third United Nations Conference on the Law of the Sea (M. Nordquist & C. Park eds. 1983).

25 Id. at 65–66.

26 Speech by U.S. Representative John R. Stevenson to the Second Session of UNCLOS III, July 11, 1974, in 71 Dep’t St. Bull. 232, 233 (1974) (emphasis added).

27 Id. (emphasis added).

28 Reports of the U.S. Delegation, supra note 24, at 83. (Committee II was created to discuss all of the traditional jurisdictional questions, e.g., territorial sea, continental shelf, high seas.)

29 Id. at 449 (emphasis added).

30 Id. at 594 (emphasis added). In an earlier statement, Ambassador Malone had commented that “[i]t has always been well understood at the Law of the Sea Conference that a successful treaty must be based on a package deal.” Law of the Sea Negotiations: Hearings Before the Subcomm. on Arms Control, Oceans, , International Operations and Environment of the Senate Comm. on Foreign Relations, 97th Cong., 1st Sess. 2–3 (1981)Google Scholar.

31 In referring to the policy statement that accompanied the President’s EEZ proclamation of March 10, 1983, Assistant Secretary Malone asserted: “In order to fully grasp and appreciate that policy, however, a key principle underlying it— namely, that the nonseabed sections of the treaty reflect customary law in distinction to those prescribing the mining regime— must be understood.” Bureau of Public Affairs, U.S. Dep’t of State, Current Policy No. 617, Freedom and Opportunity: Foundation for A Dynamic National Oceans Policy (1984) (address by James L. Malone). For a different view, see Van, Dyke, Going It Alone Is Bad for America, Wash. Post, May 12, 1985 Google Scholar, at B1.

32 “[I]nternational law recognizes that, in a zone beyond its territory and adjacent to its territorial sea, known as the Exclusive Economic Zone, a coastal State may assert certain sovereign rights over natural resources and related jurisdiction.” Proclamation No. 5030, 48 Fed. Reg. 10,605 (1983), reprinted in 77 AJIL 621 (1983), 22 ILM 465 (1983).

33 19 Weekly Comp. Pres. Doc. 383–84 (Mar. 10, 1983), reprinted in 77 AJIL 619–20, 22 ILM at 464. To indicate the reciprocal character of this statement, the President added that “the United States will recognize the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states.” Id. However, it appears that the President’s EEZ proclamation does not conform to this statement. On this problem, see the comments made by the Panel on the Law of Ocean Uses, 79 AJIL 151 (1985).

34 See 1982 Convention, supra note 5, Art. 309.

35 Id., Art. 310.

36 UNTS Registration No. 18,232, UN Doc. A/CONF.39/27 (1969), Art. 32. For a detailed discussion of the Convention, see I. Sinclair, supra note 10.

37 See note 44 infra.

38 Verbatim records [hereinafter cited as VR] of the 191st plen. mtg. (1982), 17 Third United Nations Conference on the Law of the Sea, Official Records [hereinafter cited as off. Rec] 106–07.

39 VR 185th plen. mtg. (1982), id. at 16.

40 VR 191st plen. mtg. (1982), id. at 104.

41 Id. at 103.

42 VR 187th plen. mtg. (1982), id. at 41.

43 VR 191st plen. mtg. (1982), id. at 111.

44 See, e.g., the statements made at the 185th, 187th, 189th, 191st and 192d plenary meetings by Australia (id. at 44), Austria (id. at 124), Bangladesh (id. at 112), Barbados (id. at 130), Brazil (id. at 39), Cameroon (id. at 16), Colombia (id. at 82), Fiji (id. at 43), Finland (id. at 42), Iran (id. at 105), Kenya (id. at 47), Mexico (id. at 19), Sierra Leone (id. at 131), Sri Lanka (id. at 48), St. Vincent (id. at 112) and Tanzania (id. at 50).

45 See note 36 supra.

46 Report of the International Law Commission to the General Assembly, [1950] 2 Y.B. Int’l L. Comm’n 364, 368, UN Doc. A/CN.4/SER.A/1950/Add.1.

47 See Convention on the High Seas, supra note 4. The Preamble states: “The States Parties to this Convention . . . adopted the following provisions as generally declaratory of established principles of international law.”

48 For an excellent discussion of the distinction between codification and progressive development, see I. Sinclair, supra note 10, at 10–21.

49 Id.

50 Reports of the Commission to the General Assembly, [1966] 2 Y.B. Int’l L. Comm’n 169, 177, UN Doc. A/CN.4/SER.A/1966/Add.1.

51

This principle, and the conditions and exceptions to which it is subject, have been embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances.

Fisheries Jurisdiction (UK v. Ice.), Jurisdiction of the Court, 1973 ICJ Rep. 3, 18 (Judgment of Feb. 2).

52 “The rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach (adopted without a dissenting vote) may in many respects be considered as a codification of existing customary law on the subject.” Legal Consequences for States of the Continued Presence of South Africa in Namibia, 1971 ICJ Rep. 6, 47 (Order of Jan. 26).

53

[T]he line between codification and “progressive” development is a shadowy one as is, for much the same reasons, the line between custom as a material source of a codificatory treaty provision and a treaty provision as a material source of new rules of customary international law. In this field of codification and progressive development, the custom/ treaty relationship is not so much one of a distinction as of a reciprocating effect.

Jennings, supra note 17, at 624.

54 See Baxter, supra note 14, at 277.

55 See North Sea Continental Shelf Cases, 1969 ICJ Rep. at 41.

56 Id. See also the comment of Sir Ian Sinclair:

The Court, having accorded a cautious recognition to the process whereby certain multilateral conventions may generate rules which gradually come to be accepted as forming part of customary international law, immediately proceeded to indicate, in general terms, the conditions which must be satisfied before the process can be regarded as having been effective. In the first place, the conventional provision whose transformation into a rule of customary law is in question must “be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law”. In the second place, there must be a very widespread and representative participation in the Convention, particularly of those States whose interests are specifically affected. In the third place, there must be the opinio juris reflected in an extensive State practice virtually uniform in the sense of the provision invoked. The Court appears to discount the importance of the time element, treating this as being subsidiary to the requirement of the opinio juris.

I. Sinclair, supra note 10, at 22.

57 I. Sinclair, supra note 10, at 23–24. These remarks were intended to apply primarily to the Vienna Convention on the Law of Treaties.

58 Professor Baxter felt that even “codification” conventions do not always provide clear evidence of customary norms: “Except in the case of the Geneva Convention on the High Seas, the preponderance of the evidence is thus weighted against the ‘codification’ conventions concluded under United Nations auspices being declaratory of customary international law.” Baxter, supra note 14, at 291.

59 1969 ICJ Rep. at 41. In this case, the Court also noted:

In principle, when a number of States, including the one whose conduct is invoked and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the régime of the convention is to be manifested— namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way.

Id. at 25. Furthermore, “[t]he North Sea Continental Shelf Cases have shown that it must not be too readily assumed that a treaty provision even in a ‘law-making’ treaty states a rule of customary international law.” Harris, D., Cases and Materials on International Law 285 (3d ed. 1983)Google Scholar.

60 Specifically, Article 6 of the 1958 Convention on the Continental Shelf.

61 Reparation for Injuries Suffered in the Service of the United Nations, 1949 ICJ Rep. 174 (Advisory Opinion of Apr. 11).

62 Id. at 178.

68 As Judge Jennings has made clear:

Perhaps the most remarkable innovation of all has been the Third United Nations Conference on the Law of the Sea, in attempting to rewrite the entire law of the sea in “an international treaty of universal character, generally agreed upon”. The procedures adopted by the conference have been novel in many important respects. Whatever the ultimate outcome of that Conference, it is certain that these procedures must leave their mark, and that international law will never be the same again.

Jennings, Law-Making and Package Deal, in Mélanges Offerts À Paul Reuter 347, 347–48 (1981).

64 Again, in the view of Judge Jennings:

The Third United Nations Conference on the Law of the Sea has been different from previous diplomatic law-making conferences, not only in the number of new States involved, and the broad sweep of its task, but also in certain procedural respects which are of specific juridical significance. There are, for example, the important procedural innovations, such as the employment of consensus rather than voting during the negotiating stages, the free use of unofficial inter-sessional meetings, the sparsity of the official records, and, probably most important, the devices employed for drafting, and then revising, the series of negotiating texts.

Id. at 348.

65 Baxter, supra note 14, at 293. Note that Professor Baxter’s suggestion, turning to the individual state’s voting record, would not be possible under the UNCLOS III consensus procedure.

66 See note 57 supra and accompanying text.

67 I. Sinclair, supra note 10, at 24.

68 See generally The Third United Nations Conference on the Law of the Sea: Documents (R. Platzödered. 1982–).

69 D. Harris, supra note 59, at 286.

70 Jennings, supra note 63, at 348.

71 Id. at 353. Judge de Lacharrière apparently shares Judge Jennings’s view of the legal effect of the package deal principle. See Lacharrière, de , La Réforme du droit de la mer et le rôle de la Conférence des Nations Unies, 84 Revue Générale De Droit International Public 216 (1980)Google Scholar.

72 UN Doc A/CONF.62/SR.183, at 3–4 (1982), 17 Off. Rec. at 3.

73 Law of the Sea, supra note 5, at xxxiv.

74 Id. at xxxvi.

75 Law of the Sea Negotiations: Hearing Before the Subcomm. on Arms Control, Oceans, International Operations and Environment of the Senate Comm. on Foreign Relations, 97th Cong., 2d Sess. 18–19 (1982).

76 See notes 56–57 supra and accompanying text.

77 See supra note 4.

78 For example, while Article 17 of the 1982 Convention (right of innocent passage) no doubt reflects customary law (see Article 14(1) of the 1958 Convention on the Territorial Sea and the Contiguous Zone, supra note 4), the modifications that appear in Articles 18 and 19 may not have attained similar status.

79 As Judge Jennings has pointed out:

[O]ther laws hitherto thought to be firmly established [in customary international law] have not remained intact. Notably the regime of the high seas, as it is expressed in the [1982 Convention], has seen significant changes, as a result, at least in part, of the bargaining process; even though the principle of the freedom of the high seas with all its corollaries was formerly regarded as perhaps the most firmly established of all the body of international customary law. It need hardly be added that the meaning and content of the regime of the high seas is also central to the question of deep-sea mining, which has been the most strenuously debated of all the elements in the negotiating process.

Jennings, supra note 63, at 349. Elsewhere Judge Jennings noted that “[t]here is virtually no part of customary law that could be codified sensibly without considerable elements of progressive development to fill gaps, to clarify doubts, controversies and uncertainties, to crystallise actual rules from vaguer principles or notions and to achieve the necessary degree of elaboration.” Jennings, supra note 17, at 623.

80 This group, of course, includes those provisions of the 1982 Convention which reflect customary norms that came into existence between the conclusion of UNCLOS I (1958) and the beginning of UNCLOS III (1973).

81 The 1982 Convention was adopted on Apr. 30, 1982, together with four resolutions embodied in the Final Act of the Conference, reprinted in Law of the Sea, supra note 5, at 175.

82 Explanatory Memorandum by the President of the Conference, UN Doc. A/CONF.62/WP.10/Rev.1 (1979), reproduced in 10 New Directions in the Law of the Sea 134, 135 (M. Nordquist & K. Simmonds eds. 1980).

83 See U.S. EEZ proclamation, supra note 32. According to a study conducted by the UN Secretariat, 54 states had proclaimed a 200-mile economic zone by 1983. Law of the Sea Bull., No. 2, December 1983, at vi.

84 It must be noted, however, that the principle that deep seabed mining beyond the limits of national jurisdiction can only be governed by the international regime established by the 1982 Convention is separate from the Convention itself and is capable of achieving customary status, if it has not done so already, irrespective of the status of part XI.

85 For a discussion of the notion of instant customary international law, see Cheng, United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law?, 5 Indian J. Int’l L. 23 (1965)Google Scholar; and Thirlway, H. , International Customary Law and Codification (1972)Google Scholar.

86 Article 38(1)(b) of the Statute of the International Court of Justice makes it clear that the Court shall apply “international custom, as evidence of a general practice accepted as law” (emphasis added).

87 Jennings, supra note 63, at 355.