Florence Galletti is a member of the IRD, specializing in the Law of the Sea.
She takes stock of current developments in this field.
More than ever, the Law of the Sea is essential for organizing the economic development of states and resolving inter-state conflicts over the oceans and seas.
But it is also caught up with the need for instruments to preserve biological diversity that is in a sufficiently good state to remain capable of being exploited.
Developments in the Law of the Sea in the 21st century
How many nautical miles away are we from the environmentalist inflection point?
The “new law of the sea”, which stems from the United Nations Convention on the Law of the Sea (UNCLOS) of December 10, 1982, which came into force in 1994, had a dual objective: to organize the economic development of states and to resolve inter-state conflicts over the oceans and seas.
It leaves a cartography of maritime zones established in accordance with UNCLOS, customary law or international court rulings, with, on the one hand, areas mostly delimited by scientific methods, such as internal waters, territorial seas and contiguous zones, exclusive economic zones (EEZs), simple or now extended continental shelves, the high seas, the international seabed zone, and their sub-declensions formed by fishing zones, with, on the other hand, more specific spaces (islands, bays, straits, international canals, archipelagic waters) and their regimes.
It has securely divided up the rights of States, as well as the role of public international organizations, institutions or specialized agencies of the United Nations: regional fisheries organizations (RFOs), the International Seabed Authority (ISA), the Intergovernmental Oceanographic Commission (IOC), etc.
Did the international law of the sea of the 20th century have only a territorial aspect?
It has been forgotten that it recalls the obligation to conserve certain ecological services rendered, even if the expression was not used, and the need not to deprive other States of these services.
On the contrary, the state of the environment is not one of the unmentionables in the UNCLOS text.
It has recognized marine scientific research (Part XIII, UNCLOS), in its capacity to inform and analyze ocean resources.
Distinct from environmental law, which is concerned with the sea from the point of view of protecting the natural environment, international law of the sea is caught up in the need for instruments to preserve biological diversity in a situation that is good enough to remain capable of being exploited.
This is no coincidence.
The multiplication of activities and projects in the seas, the reduction in available resources, the increase in ecological degradation and dysfunction – better identified by advances in marine science – all call for attention, as does the under-utilization of the international law of the sea to correct these situations.
Each case is unique, and maritime zones are not equal, even within the same state.
But what exists in the law of the sea and in fisheries law is enough for governments to take action, alone or jointly, in compliance with what international law allows, for the EEZ and the continental shelf.
The development of more distant “non-reef” marine protected areas on relevant sites (e.g. seamounts) is an example of national public action timidly undertaken for ecological purposes.
They are struggling to gain a bilateral or multilateral dimension through the signing of agreements between States to protect, in twos or in multiples, habitats distributed between States.
In the western Indian Ocean, cooperation agreements of this type are proving useful.
On these modern subjects, such as the legal protection of marine ecological networks (Galletti,2014), the international law of the sea, driven by willing states, must be mobilized.
Beyond waters under national jurisdiction, a draft treaty is emerging: the “International Legally Binding Instrument on the Conservation and Sustainable Use of the Marine Biological Diversity of Areas beyond National Jurisdiction”.
Although it has been criticized, this treaty should bring more, better or new legal protection to the conservation and use of the most remote marine biodiversity (Galletti, 2022), if the Indian Ocean knows how to take advantage of it…
Florence Galletti
Dr. Florence Galletti
Florence Galletti is a research fellow in public law at the Institut de Recherche pour le Développement (IRD), a French public scientific research institute.
