Developments in the 21st century Law of the Sea.
How many nautical miles away are we from the environmental inflection point
The “new Law of the Sea” which comes from the United Nations Convention on the Law of the Sea (UNCLOS) of 10 December 1982, which came into force on 16 November 1994, had a dual objective: of organising the economic development of states and resolving ocean-related conflicts between states. This results in a mapping of maritime zones established according to UNCLOS, customary law, or international court judgments, with, on the one hand, spaces mostly delimited by scientific methods, such as internal waters, territorial seas, contiguous zones, exclusive economic zones (EEZ), single or extended continental shelves, the high seas, the international seabed area (Zone), on the other hand, their sub-divisions formed by fisheries zones, and more specific spaces (islands, bays, straits, international channels, archipelagic waters) and their regimes. It has divided up the rights of States in a secured manner, as well as the role of public international organisations, institutions or specialised agencies of the United Nations: regional fisheries management organisations (RFMOs), the International Seabed Authority (ISA), the Intergovernmental Oceanographic Commission (IOC), etc.
Did this 20th century international Law of the Sea have only a territorial aspect?
It has been forgotten that it highlights 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.
The status of the environment is not one of the unmentionables of the UNCLOS text, on the contrary. It has recognised marine scientific research (Part XIII, UNCLOS), in its capacity to inform and analyse ocean resources. Distinct from environmental Law, which is concerned with the sea from the perspective of protecting of the natural environment, international Law of the Sea is now in need of instruments to keep the biological diversity in a status that is good enough to allow some level of exploitation.
This did not happen by chance.
The multiplication of activities and projects in the seas, the reduction of available resources, the increase in ecological degradation and dysfunctioning – better identified by the progress of marine sciences – call for attention, as does the under-utilisation of international Law of the Sea to correct these situations.
Each case is unique, and maritime zones are not equal, even within the same State. However, what exists in the Law of the Sea and in fisheries Law is sufficient 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 “non-reef” marine protected areas, more distant, 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 inter-state agreements to protect shared habitats between two or more States. In the Western Indian Ocean, cooperation agreements of this type have proven useful. On these modern subjects, such as the legal protection of marine ecological networks (Galletti, 2014), the international Law of the Sea, driven by voluntary States, must be mobilised. Beyond waters under national jurisdiction, a draft treaty is emerging: the “International Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biological Diversity beyond Areas of National Jurisdiction”. Although critical, this treaty should bring more, better, or new legalization to the conservation and use of the remote marine biodiversity (Galletti, 2022), if the Indian Ocean can take advantage of it… (read more in the resources tab)
