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 Evolution of the Law of the Sea
from an Institutional Perspective

RODIGER WOLFRUM*

ABSTRACT: The progressive development of international law can occur in a variety of

ways. With specific reference to the law of the sea, this contribution analyses three different
methods which instigate the evolution of new norms. First, norm-making through negotia-
tions is examined, with particular emphasis placed on the negotiated UNCLOS implementa-
tion agreements and the development of supplementary law of the sea norms at the national
level. Next, the norm-making fuinctions of international organisations are considered, specifi-
cally concerning the promulgated regulations of the International Seabed Authority and the
quasi-norm-making ability of the International Maritime Organisation. Finally, the norm-
making capacity of international courts and tribunals is discussed in some detail. Particular
attention is paid to the problems posed by the ITLOS in this regard, since it is occasionally
required by the UNCLOS to go beyond the mere interpretation of pre-existing norms in
order to provide equitable solutions to specific situations. The examination of these three
instances of norm development in the context of the law of the sea serves to elucidate the
progressive evolution of international legal norms generally.
KEYWORDS: Law of the Sea, International Lawmaking, International Courts and Tribu-
nals, International Organisations, International Treaties, Delimitation

I. Introduction

To speak about 'evolution' of international law means several things; it may mean
negotiating new rules (by new international treaties on law of the sea matters or
implementation agreements such as the Straddling Fish Stocks Agreement) or it may

* Judge at the International Tribunal for the Law of the Sea (ITLOS), Hamburg. The views ex-
pressed are the ones of the author and may not reflect the views of other members of the ITLOS. The
author wishes to thank MrJohn Dingfelder-Stone for his valuable assistance in finalising the text.
' 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, 4 December 1995, UNTS 2167, 3 (Straddling Fish Stocks
Agreement).
96 GERMAN YEARBOOK OF INTERNATIONAL LAW 57" 2014

mean the development of soft law instruments which either affect the interpretation
of already existing hard law or may evolve into hard law at a later stage. The evolution
of new norms may be set in motion and realised in universal or regional negotiations,
in universal or regional international organisations, or by the practice of States which
has developed into customary international law. Also international courts and tribu-
nals are to be mentioned in this respect since they, as will be shown, contribute to the
evolution of the law of the sea. The latter aspect requires dealing with an issue which
in general, at least in the most recent past, has been dealt with intensively, in particu-
lar under the headline of whether international courts and tribunals enjoy de iure or
dejfacto norm-making or, in other words, legislative powers.2

This contribution will deal with the issue of norm-making through international
negotiations first and shall then address the norm-making functions of international
organisations, universal as well as regional ones. Thereafter the contribution will deal
with the norm-making functions of international courts or tribunals. However,
before doing so, some clarifying words on the notion of 'norm-making' are called for.
As will be demonstrated in this contribution, the 1982 UN Convention on the Law
of the Sea (UNCLOS)3 establishes a particularly complex system on norm-making
which sets it apart from public international law in general. Not only the institutions
established under the Convention contribute to the development of norms governing
activities at sea but also States parties acting either on the international or the na-
tional level albeit under the umbrella of the Convention. It is also for this reason that
the Convention is referred to as the 'constitution of the oceans.'

II. Norm-Making

If interpreted in a strict sense, norm-making means the power to establish legal

norms which are binding in general or in respect of a particular constituency. As far
as public international law in general is concerned, such binding norms are established
through international treaties, customary international law, binding decisions of inter-

2 See in particular Armin von Bogdandy/Ingo Venzke (eds.), International Judicial Lawmaking
(2012), 4, footnote 2,referringto the literature considering the "creation and stabilization of normative
expectations" as the core function of law.
' United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 396
(UNCLOS).
 EVOLUTION OF THE LAW OF THE SEA

national organisations, and general principles of law.4 As far as the legal regime under
the UNCLOS is concerned, the situation is somewhat more complex. Apart from the
international norms referred to and which may be used by international courts and
tribunals in accordance with Article 193 UNCLOS, Chapter XII of the Convention
on the marine environment makes reference to internationally established standards
and practices and its Chapter XI refers to Regulations of the International Seabed Au-
thority (ISA). Both categories of standards and regulations constitute binding norms
for the parties to the UNCLOS, although not established by the Convention itselfbut
as secondary norms of the Convention thus being part of the law of the sea regime.5

It seems to be apparent that judgments of international courts and tribunals cannot

belong to the same league. As is well known and is laid down in the statutes of the
international courts and tribunals concerned,6 judgments are only binding upon parties
to that particular dispute. They are theoretically not binding for other courts and
tribunals and, lacking a stare decisisrule, not even for the court or tribunal which issued
them. This positivistic answer, however, does not cover the relevance of international
judgments for the development ofinternational law fully. Nevertheless, it is mandatory
to distinguish between norm-making and the interpretation of existing norms.

III. Norm-Making through Negotiations

The Convention is meant to cover the law of the sea fully and requires a certain
superiority vis-4-vis previous and subsequent international agreements covering this
subject. This is provided for in Article 311 (1) UNCLOS in respect of the 1958 Geneva
Conventions. This provision states that the UNCLOS prevails, as between the States
parties to it, over the Geneva Conventions. Further, according to Article 311 (2)

4 Art. 38 (1)(a)-(c) Statute of the International Court ofJustice, 26 June 1945, UNCIO 15, 355

(ICJ Statute); see Alain Pellet, Article 38, in: Andreas Zimmermann/ Christian Tomuschat/Karin
Oellers-Frahm (eds.), The Statute of the International Court ofJustice: A Commentary (2nd ed. 2012),
paras. 172-264.
5 See infra, IV.
6 See e.g. Art. 59 ICJ Statute, Art. 33 (2) Annex VI UNCLOS.
7 Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, UNTS 516, 205;
Convention on the High Seas, 29 April 1958, UNTS 450, 11; Convention on Fishing and Conserva-
tion of the Living Resources of the High Seas, 29 April 1958, UNTS 559, 285; Convention on the
Continental Shelf, 29 April 1958, UNTS 499, 311.
98 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 2014

UNCLOS the Convention shall not alter the rights and obligations of States parties
which arise from other agreements compatible with the Convention. E contrariothis
means that rights and obligations arising from international agreements contrary to
the UNCLOS and which violate the enjoyment of rights of other States parties or the
performance of their obligations must yield to the Convention. Nevertheless, agree-
ments between States parties may modify or suspend - interpartes- the operation of
provisions of the Convention. This possibility only exists so far as such agreements are
not incompatible with the object and purpose of the UNCLOS.' Finally, amendments
to the basic principle relating to the common heritage are ruled out.9 The latter falls
short of declaring the common heritage principle as ius cogens. Apart from all these
restrictions, the Convention relies to a certain extent on supplementary rules developed
in negotiations. This is clearly expressed in Article 211 (1) UNCLOS which provides
that norms against the pollution of the sea from ships shall be developed - amongst
others - by general diplomatic conferences.

It should be noted also that the procedure of amending the Convention1 ° or revising
it is cumbersome and not likely to be implemented in practice. On the basis of these
provisions it is possible to conclude that the UNCLOS attempts to establish a complete
legal regime governing the oceans and that modifications to this regime on the basis
of negotiations are only possible to the extent that they keep within the framework set
by the Convention. This limitation is, however, not as stringent as it may sound. The
UNCLOS is phrased in some of its parts - and in particular in parts which deal with
economic activities or are devoted to the protection of the marine environment - in
broad terms, which gives leeway to new and more specific rules. Apart from that it
should be taken into account that the Convention in some instances - particularly in
respect of the conservation and management of marine living resources or the explora-
tion and exploitation of the continental shelf (within and beyond 200 nm) - entrusts
coastal States with sovereign rights or jurisdiction which entails the competence to
prescribe the necessary norms and to enforce them.11 In these cases the evolution of
further rules takes place on the national rather than on the international level.

Art. 311 (3) UNCLOS.

9 Art. 311 (6) UNCLOS.
10 See Arts. 312-314 UNCLOS.

" See e.g. Arts. 56, 60-67,73 (1) UNCLOS and Arts. 77,79 (3)-(4), 80, 81 UNCLOS.
 EVOLUTION OF THE LAW OF THE SEA

However, such national rules - as clearly indicated by Article 73 UNCLOS12 - are to

be seen as rules supplementary to and within the framework of the Convention. Coast-
al States have used this competence also to develop regional or sub-regional agreements
on the conservation and management of living resources. 13 This development meets
14
the objective of the Convention and is one indication of its framework character.

In spite of that, since the adoption of the UNCLOS the necessity was felt to
provide for a multilateral agreement covering certain aspects of deep seabed mining
and on the management and conservation of marine living resources. This led to two
so-called implementation agreements1 5 - a euphemism since these agreements consti-
tuted amendments of the Convention elaborated and adopted outside the framework
for amendments. There is a movement for another implementation agreement
covering genetic resources, an issue not foreseen during the negotiations of the
UNCLOS. In this respect this possible third implementation agreement differs from
the already existing two. Whereas the issues covered by the Implementation Agree-
ment relating to Part XI UNCLOS had been discussed at the Third UN Conference
on the Law of the Sea and the issue of straddling fish stocks and highly migratory
stocks could have been discussed more deeply and decided upon in more detail, the
relevance of marine genetic resources was fully realised only after the end of the Con-
ference. The necessity to have recourse to implementation agreements proves that the
rules on amendments are considered as being overly restrictive.

IV. Norm-Making through International Organisations

Generally speaking, only few international organisations have the mandate to

make legal norms.16 The UNCLOS establishes one international organisation with

12Art. 73 (1) UNCLOS provides that coastal States may only implement laws and regulations
adopted by the coastal State "in conformity with this Convention".
13 On regional fisheries organisations, see e.g. DavidFreestone,Fisheries, Commissions and Organi-

zations, EPIL IV (2012), 56, with further references as to competences and decision-makingprocedures.
14NeleMatz-Luck, Framework Agreements, EPIL IV (2012), 220, para. 4.
" Agreement relating to the Implementation of Part XI of the United Nations Convention on the
Law of the Sea of 10 December 1982, 28 July 1994, UNTS 1836, 3; Straddling Fish Stocks Agreement.
16 For details seeJos E. Alvarez, International Organizations as Law-Makers (2005).
100 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 2014

law-making functions - the International Seabed Authority 17 - and entrusts another

one - the International Maritime Organisation (IMO) - with functions which come
close to law-making.

The Seabed Authority has substantially elaborated the legal regime of the UNCLOS
for deep seabed mining, for which the Convention only sets a framework. This
framework approach was clearly seen as such and was agreed upon in the Conference.18
When the UNCLOS was adopted it was evident that the implications of deep seabed
mining could not be anticipated in full. The main instruments of the ISA in that
respect are its Regulations, which are meant to provide for a legal framework for the
prospection, exploration, and exploitation of mineral resources of the area beyond
national jurisdiction (the Area). It has been well-recognised from the outset that such
a legal framework should implement the common heritage principle and thus should
provide for a fair and equitable distribution of the benefits derived from the Area. It
has been further acknowledged that the common heritage principle equally demands
for the protection of the marine environment.19 The ISA's Regulations currently
comprise the Regulations on Prospecting and Exploration of Polymetallic Nodules in
the Area (Nodules Regulations), the Regulations on Prospecting and Exploration of
Polymetallic Sulphides in the Area (Sulphides Regulations), and, finally, the Regula-
tions on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the
Area (Cobalt Crusts Regulations).2 ° In elaborating these Regulations the ISA had to
honour three objectives all of them rooted in the common heritage principle, namely
to provide for a sustainable mining system which serves the interests of producers and
investors without prejudice to the interest of future generations in deep seabed mining,
the protection of the marine environment against negative impacts of deep seabed

17 Arts. 137 (2), 146, 147 (2)(a), 151 (7) UNCLOS.

18 Rfidiger Wofirum, Die Internationalisierung staatsfreier Riume: Die Entwicklung einer inter-
nationalenVerwaltungfilrAntarktis, Weltraum, Hohe See und Meeresboden (1984), 415 etseq., with
further references.
19 Id., Common Heritage of Mankind, MPEPIL, paras. 9,22, available via: http://www.mpepil.com

(accessed on 4 November 2014).

20 ISA, The Law of the Sea: Compendium of Basic Documents (2001), 226, available at: http://

www.isa.org.jm/files/documents/EN/Pubs/LOS/index.html (accessed on 4 November 2014); see the

analysis of MichaelLodge,International Seabed Authority's Regulations on Prospecting and Exploration
for Polymetallic Nodules in the AreaJournal of Energy and Natural Resources Law 20 (3) (2002), 270.
 EVOLUTION OF THE LAW OF THE SEA

mining and related activities, and to provide for a fair and equitable distribution of the
benefits derived from deep seabed mining.21

Although these Regulations are quite similar in their structure they very clearly
show the continuing progressive development of environmentally-guided interna-
tional law as far as the Area is concerned. However, these Regulations should not be
seen in isolation. They contribute, as already indicated, to the development of inter-
national environmental law and further clarify what is meant by sustainable develop-
ment and management of resources. The ISA developed these Regulations taking into
account the deliberations concerning the protection of the Antarctic environment
against possible impacts of mining and research activities.

These Regulations of the ISA are binding upon the States parties to the UNCLOS.22
It would have been a matter of consequence if they had been made directly binding
upon private operators. This issue was intensively discussed but the view prevailed that
international law was not directly binding upon private operators. Thus, the ISA lacks
supranationality. The mechanism through which the Regulations are made binding
upon private operators is their acceptance by potential operators when they apply for
an exploration or exploitation contract (plan of work).23

It is the function of the ISA to monitor mining activities and in that respect it will
have to rely on the cooperation with the sponsoring State. In case of a violation, it is
the obligation of the Authority to take appropriate enforcement action. The sponsor-
ing State, in turn, is obliged to establish the national legal regime necessary to imple-
ment the legal regime on deep seabed mining set up by the Authority. With regard to
the proper format for achieving suitable implementation, both the UNCLOS and the
Regulations remain silent, which means the sponsoring States have some discretion in
that respect. The Advisory Opinion of the Seabed Disputes Chamber indicated,
though, that this discretion is not without limits. Germany has selected a particular,
and certainly very effective, system by providing that the Regulations issued by the ISA
will become German national law by an executive order of the Minster for Economics.
Further, under Article 139 UNCLOS the sponsoring State must ensure that the
contractual obligations of a sponsored entity can be enforced in the sponsoring State

21 Wo4frum (note 19), paras. 16, 18-19.

22 Art. 153 (1), (5) UNCLOS.

23 See Art. 4 (6) Annex III UNCLOS.

102 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 2014

and that claims for damages may be brought against it before national courts. The
Advisory Opinion of the Seabed Disputes Chamber has detailed these obligations.24

Also the IMO has acquired the competence to contribute to the evolution of legal
norms although its competence does not reach the same level as that of the ISA. This
is due to the difference in the origin of the two institutions. Whereas the ISA was
established with the view to develop norms for deep seabed mining, the IMO was
originally only meant to facilitate multilateral negotiations concerning shipping. By
modifying the process for the coming into force of amendments to the International
Convention for the Safety of Life at Sea (SOLAS Convention) 25 - the tacit accep-
tance procedure - such amendments do not have to undergo the cumbersome ratifi-
cation procedure. On this basis one may qualify the IMO's competences as being of
a quasi norm-making nature. This is demonstrated clearly by the efforts undertaken
by the IMO concerning shipping in the Arctic.

The IMO has been engaged in the development of rules for shipping in Polar
waters for several years. The efforts resulted in the adoption of the Guidelines for
Ships Operating in Polar Waters on 2 December 2009. These Guidelines 2 are non-
mandatory and deal with the construction of ships (including electronic equipment),
fire arrangements, and rules on the operation of ships. They apply to ships operating
in Antarctica, south of 60 degrees south latitude, and in the Arctic, mostly north of
60 degrees north latitude but including Greenland (not Iceland) and excluding the
parts of Norway and Russia north of 60 degrees north latitude.

The Guidelines serve as the basis for the ongoing negotiations of the Polar Code
(Mandatory Code for Ships Operating in Polar Waters). The Code will apply, as the
Guidelines, to the Arctic as well as to Antarctica and will supplement - not replace -
existing international agreements such as SOLAS and the International Convention
for the Prevention of Pollution from Ships (MARPOL) 27. The scope of application
is the same as the one of the Guidelines.

24 ITLOS, Responsibility and ObligationsofStates SponsoringPersonsandEntities with Respect to Ac-

tivities in theArea, Advisory Opinion of 1 February 2011, ITLOS Reports 2011, 10.
21 International Convention for the Safety of Life at Sea, 1November 1974, UNTS 1183,3 (SOLAS

Convention).
26 IMO Res. A.1024(26) of 2 December 2009.

2 International Convention for the Prevention of Pollution from Ships, 2 November 1973, UNTS
1340, 184 (MARPOL).
 EVOLUTION OF THE LAW OF THE SEA

The Code regulates the required structure of ships which intend to navigate in the
Polar Regions. The Draft also contains several rules concerning the machinery, on
operational safety, protection against fire, life-saving appliances, safety of navigation,
communication, and manning, including the training of the crew. Even measures for
the protection of passengers are provided for.

The Code will be adopted as amendments to SOLAS and MARPOL and shall
enter into force after a given period of time for all States parties to these two agree-
ments, unless, before that date, objections to the amendment are received from an
agreed number of States parties.

Finally the competences of the Food and Agriculture Organization of the United
Nations (FAO) should be mentioned in this context. It has established a Code of
Conduct for Responsible Fisheries as a non-binding instrument, but this Code is
being implemented and used by the FAO as an instrument to generate new interna-
tional norms. It may also be used to fill the provisions of the UNCLOS concerning
conservation and management of marine living resources with substance. It is the
particularity of this Code that it has been developed outside the context of the frame-
work of an international treaty regime and it derives its legitimacy from having been
established by experts and by having been accepted in practice thereafter (output le-
gitimacy).

V. Norm-Making by International Courts and Tribunals

According to Article 38 (1) (d) ICJ Statute "judicial decisions [are] subsidiary means
for the determination of rules of law" only. z" The International Court ofJustice (ICJ)
has stated on this issue:

It is clear that the Court cannot legislate, and, in the circumstances of the present case, it is
not called upon to do so. Rather its task is to engage in its normal judicial function of
ascertaining the existence or otherwise of legal principles and rules [...].
The contention that the giving of an answer to the question posed would require the
Court to legislate is based on a supposition that the present corpusjurisis devoid of relevant
rules in this matter. The Court could not accede to this argument; it states the existing law

2 See Pellet (note 4), paras. 313 319.

104 GERMAN YEARBOOK OF INTERNATIONAL LAW 57" 2014

and does not legislate. This is so even if, in stating and applying the law, the Court necessar-
ily has to specify its scope and sometimes note its general trend. 9

This dictum is to be agreed to. Also the interpretation of existing norms by inter-
national courts and tribunals plays a significant role in the consolidation and forma-
tion of the international normative order. Nevertheless, it is necessary to distinguish
between rule-making and the interpretation of existing rules, be it treatylaw or inter-
national customary law. To consider the interpretation of international norms by
international courts and tribunals as law-making does not reflect the nuances which
exist in this respect in the mandate of international courts and tribunals. It further
does not reflect that international norms are binding upon parties to these norms (in
the case of an international treaty) or all States (in the case of international customary
law) whereas judgments of international courts or tribunals are only binding upon
the parties to the dispute and only have an indirect influence on the development of
international law. They are, at least in principle, not even binding upon the court or
tribunal having pronounced them. 0

Having stated that international courts and tribunals have no norm-making func-
tion, it is to be acknowledged that the UNCLOS poses particular problems in this
respect. It calls upon international courts and tribunals to take decisions which go
beyond a mere interpretation of the law. This is particularly true for the delimitation
of the exclusive economic zones (EEZ) and the continental shelves up to and beyond
200 nm. The latter issue evolved only recently and will be dealt with separately. 1

The starting point for all delimitation cases for the EEZs and the continental
shelves are Article 74 and Article 83 UNCLOS, respectively, between States with
opposite or adjacent coasts. Article 74 UNCLOS reads in its first two paragraphs:

29 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ
Reports 1996,226, para. 18; see also the Separate Opinion ofJudge Gilbert Guillaume in the same case,
293, para. 14.
30 DifferentlyArmin von Bogdanly/Ingo Venzke, Beyond Dispute: International Judicial Institutions

as Lawmakers, in: id. (eds.) (note 2), 3, 12-13. It goes without saying that the legal reasoning may
"amount to significant legal arguments in future disputes." However, this is not tantamount to legal
bindingness as are the consequences of international treaties as envisaged by Art. 26 Vienna Convention
on the Law of Treaties, 13 May 1969, UNTS 1155, 331 (VCLT).
31 See BingBingJia,The Principle of the Domination of the Land over the Sea: A Historical Per-

spective on the Adaptability of the Law of the Sea to New Challenges, German Yearbook of Interna-
tional Law (GYIL) 57 (2014), 63, 71-81.
 EVOLUTION OF THE LAW OF THE SEA

1. The delimitation of the exclusive economic zone between States with opposite or
adjacent coasts shall be effected by agreement on the basis of international law, as referred
to in Article 38 of the Statute of the International Court ofJustice, in order to achieve an
equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned
shall resort to the procedures provided for in Part XV.

It is apparent from the wording that the international courts and tribunals ad-
dressed in paragraph 2 do not receive much guidance. Only one issue is evident,
namely that the result to be achieved has to be equitable, and one should add that the
procedure should be equitable and transparent.32 It is equally evident that Article 74
UNCLOS does not give the international courts and tribunals a mandate to decide
ex aequo et bono.

Over the years a vast jurisprudence has developed which started - from before the
UNCLOS - with the North Sea ContinentalShelf Cases33 to the ContinentalShelf
Case between the Libyan Arab Jamahiriya and Malta34 to the Black Sea Case.35 The
most recent cases are the Dispute concerningthe DelimitationoftheMarineBoundary
between Bangladesh and Myanmar in the Bay of Benga, 36 the ICJ judgment in the
Dispute between Nicaragua and Colombia,3 and the award
TerritorialandMaritime
in the Bay ofBengalMaritimeBoundaryArbitrationdecided by an Annex VII arbitral
tribunal. 38 A new case, Question of the Delimitationof the ContinentalShelf between

32 Permanent Court of Arbitration (PCA), In the Matter of the Bay ofBengal MaritimeBoundary

Arbitration(Bangladesh v. India), Award of 7 July 2014, para. 339, available via: http://www.pca-cpa.
org/showp age.asp?pagid= 1376 (accessed on 4 November 2014).
33 ICJ, North Sea ContinentalShelfCases(Federal Republic of Germany/Denmark; Federal Repub-
lic of Germany/Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, 3.
34 Id., Case concerningthe ContinentalShelf (Libyan Arab Jamahiriya/Malta), Judgment of 3 June
1985, ICJ Reports 1985, 13.
35 Id., MaritimeDelimitationin the Black Sea (Romania v. Ukraine),Judgment of 3 February 2009,
ICJ Reports 2009, 61.
36 ITLOS, Dispute concerning the Delimitation of the Marine Boundary between Bangladesh and
Myanmarin the Bay ofBengal (Bangladesh/Myanmar), Judgment of 14 March 2012, ITLOS Reports
2012,4.
37 ICJ, TerritorialandMaritimeDispute (Nicaragua v. Colombia),Judgment of 19 November 2012,
ICJ Reports 2012, 624.
31 See PCA (note 32).
106 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 2014

Nicaraguaand Colombia beyond 200 nauticalmilesfrom the NicaraguanCoast,39 and

the case MaritimeDelimitation in the CaribbeanSea and in the Pacific Ocean40 are
pending before the ICJ and will be a test to what extent the ICJ reconfirms the so far
existing international jurisprudence.

This jurisprudence has developed a methodology for delimitation, a procedure,

and criteria against which the equality of the delimitation is to be judged. But what is
the meaning of this jurisprudence? Is it binding in a sense that the arbitral tribunal
concerning the Bay ofBengal Maritime BoundaryArbitration between Bangladesh
and India is bound to follow, let us say, the jurisprudence of the ICJ in the Black Sea
Case?This issue has been addressed in two judicial decisions.

In respect of the relevance of case law the International Tribunal for the Law of
the Sea (ITLOS) notes in paragraph 184 of its judgment in the MaritimeBoundary
Dispute between Bangladesh and Myanmar:

Decisions of international courts and tribunals, referred to in article 38 of the Statute of

the ICJ, are also of particular importance in determining the content of the law applicable
41
to maritime delimitation under articles 74 and 83 of the Convention.

In the same paragraph

the Tribunal concurs with the statement in the Arbitral Award of 11 April 2006 that: 'In
a matter that has so significantly evolved over the last 60 years, customary law also has a
particular role that, together with judicial and arbitral decisions, helps to shape the consid-
erations that apply to any process of delimitation. '42

These statements, the statement of the ITLOS and the one of the Arbitral Tribu-
nal, are neither identical nor very clear in their meaning. Taken literally, they attrib-
ute a different role to case law. According to the ITLOS, case law seems to be a means
of identifying applicable sources of international law. It is doubtful whether this
adequately describes the role that international case law plays and is meant to play in

31 See the ICJ's pending cases, available at: http://www.icj-cij.org/docket/index.php?pl=3&p 2 =

1&k=02&case= 154&code=nicolb (accessed on 4 November 2014).
'0 Seethe ICJ's pending cases, available at: http:/ /www.icj-cij.org/docket/index.php?pl =3&p 2 = I&
code= crnic&case= 157&k=0f (accessed on 4 November 2014).
41 ITLOS, Bangladesh/Myanmar (note 36), para. 184.

42 Ibid., quotingArbitrationbetween Barbadosand the Republic of Trinidadand Tobago, relatingto

the Delimitation of the Exclusive Economic Zone and the Continental Shelf between Them, Arbitral
Award of 11 April 2006, Reports of International Arbitral Awards (RIAA) XXVII, 147, para. 223.
 EVOLUTION OF THE LAW OF THE SEA

the delimitation of the continental shelf and the EEZ. Considering the openness of
the wording of Articles 74 and 83 UNCLOS, case law of international courts and
tribunals is more than a means to identify the customary or treatylaw relevant for the
delimitation of continental shelves and EEZs. International courts and tribunals in
respect of maritime delimitation exercise a 'law-making function,' a function which
is anticipated and legitimised by Articles 74 and 83 UNCLOS by elaborating what
constitutes an equitable solution. Unlike for the delimitation of the territorial sea, the
Third United Nations Conference on the Law of the Sea could not agree on a partic-
ular method ofdelimitation of the continental shelves and the EEZs. The Conference
therefore left the task of the delimitation to the coastal States concerned and - if they
could not agree - to judicial dispute settlement. That means it is the task, and even
the responsibility, of international courts and tribunals (when requested to settle
disputes) to develop the methodology that is suitable for this purpose. In doing so,
they are guided by a paramount objective, namely that the method chosen can lead to
an equitable result and that, at the end of the process, an equitable result is achieved.
Further objectives to be taken into consideration by international courts and tribu-
nals are to provide for transparency and predictability of the whole process. The
ensuing international case law constitutes an acquisjudiciaire,a source of interna-
tional law to be read into Articles 74 and 83 UNCLOS. It is the feature of this law
not to be static but to be open to progressive development by the international courts
and tribunals concerned. It is the responsibility of these international courts and
tribunals not only to decide delimitation cases while remaining within the framework
of such an acquisjudiciairebut also to provide for the progressive development of the
latter. They are called upon in further developing this acquisjudiciaireto take into
account new scientific findings.

There are further cases in which the ITLOS contributed to the progressive evolu-
tion of norms governing the management of the sea. These are the decision that the
delimitation of the continental shelves beyond 200 nm is governed by the same
principles for delimitation as developed for Articles 74 and 83 UNCLOS 43 and the
interpretation of Article 73 UNCLOS 44 on the competences of coastal States in

43 Id., Bangladesh/Myanmar (note 36), paras. 341-376.

44 Id., The "Tomimaru"Case (Japan v. Russian Federation), Prompt Release, Judgment of 6 August
2007, ITLOS Reports 2005-2007,74, para. 72; reiterated and further elaborated upon in id., TheM/V
"VirginiaG" Case (Panama/ Guinea-Bissau),Judgment of 14 April 2014, para. 253, available at: http://
108 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 2014

respect of the management of marine living resources. Although the decisions con-
cerned clarify the meaning of the respective provisions, the decisions were reached by
a careful analysis of the regimes on delimitation and on the management of living
resources, respectively, by means of interpretation. For example, in the "Tomimaru"
Case (Japan v. Russia) of 6 August 2007 the ITLOS stated in paragraph 72:

The Tribunal notes that article 73 of the Convention makes no reference to confiscation
of vessels. The Tribunal is aware that many States have provided for measures of confisca-
tion of fishing vessels in their legislation with respect to the management and conservation
45
of marine living resources.

What does this mean? The ITLOS had recourse - although not spelled out prop-
erly - to the Vienna Convention on the Law of Treaties (VCLT) according to which
retroactive State practice may be used for interpretation purposes (Article 31 (3)(b)
VCLT). This is a daring statement which raises several questions. What is the State
practice referred to, must it be universal and overwhelming as in the case of confisca-
tion? Apart from that, the interpretation has to remain within the framework of the
UNCLOS. For example, Article 73 UNCLOS prohibits corporal punishment of
violators of national fishing laws in the EEZ. Such limitation of coastal States' en-
forcement rights cannot be overturned by retroactive practice.

VI. Conclusion

The UNCLOS is a framework convention which in some of its parts is deliberately

open for legal developments. The necessary norm-making may be undertaken by
negotiations - to the extent such negotiations do not lead to results contrary to the
object and purpose of the UNCLOS - or by States parties on the national level or by
international organisations. In particular, the ISA exercises norm-making functions.
Similar functions are exercised by the IMO and the FAO. Accordingly, it is appropri-
ate to state that under the UNCLOS international organisations are meant to play

www.itlos.org/fLileadmin/itlos/documents/cases/case no.19/judgment/C19-Judgment 14.04.14

corr.pdf (accessed on 4 November 2014).
" Id., Tomimaru Case (note 44), para. 72.
 EVOLUTION OF THE LAW OF THE SEA

and play an important part in the evolution of the law of the sea. Equally influential
in this respect is the General Assembly of the United Nations46

International courts and tribunals equally contribute to the evolution of the law of
the sea. They do so by interpreting the UNCLOS, also taking into account subse-
quent practice of States parties and subsequent international agreements. They may
in this context also take into consideration international agreements concluded under
the auspices of specialised agencies dealing with law of the sea matters such as the
IMO or the FAO. To a certain extent international courts and tribunals are called
upon by the Convention to act as norm-makers. This mandate carries with it a partic-
ular responsibility.

Finally, it is appropriate to mention that judgments are not the only means to
contribute to the evolution of the law of the sea. Advisory opinions may have a
similar effect. They have certain advantages since they answer a legal question in
general and deal with it in a format - it is not adversarial - which is particularly suit-
able.4 Advisory opinions are not binding. They live from their reasoning and to the
extent the hearing was open. The advisory opinion of the Seabed Disputes Chamber
is a very good example to that extent. It certainly contributed positively to the evo-
lution of the law of the sea. It is to be hoped that the advisory opinion of the full
tribunal on the responsibility of flag States concerning fishing vessels under their
flag48 will be received equally as a substantial contribution to the law of the sea.

6 See Liesbeth Lijnzaad,Formal and Informal Processes in the Contemporary Law of the Sea at the

United Nations: A Practitioner's View, GYIL 57 (2014), 111, 117 etseq.

17 On the competence of the ITLOS to give advisory opinions and the relevant scientific debate see
Rfidiger Wo6frum, Advisory Opinions: Are they a Suitable Alternative for the Settlement of Interna-
tional Disputes, in: id./Ina Gitzschmann (eds.), International Dispute Settlement: Room for Innova-
tions? (2013), 35, 53-55.
" ITLOS, Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission
(SRFC), 27 March 2013, available at: http://www.itlos.org/fieadmin/itlos/documents/cases/case
no.2 1/Request eng.pdf (accessed on 4 November 2014).