Maritime Energy Resources in Asia: Legal Regimes and Cooperation

UNCLOS and the Obligation to Cooperate

23 the national bureau of asian research nbr special report #37 | february 2012 SEOKWOO LEE is a Professor of International Law at Inha University, Korea. He can be reached at . NOTE The author wishes to thank Chang-Hoon Shin at the Asan Institute for Policy Studies in Korea for contributions to this essay. UNCLOS and the Obligation to Cooperate Seokwoo Lee EXECUTIVE SUMMARY This essay seeks to clarify the obligatory language in the UN Convention on the Law of the Sea (UNCLOS) in order to improve compliance with the convention. MAIN FINDINGS • The language of “shall” or “should” creates binding legal obligations for member states. • The language of “may,” although ostensibly of a voluntary nature, essentially creates a standard of obligation that does not infringe on the sovereignty of states. • There are two general categories of obligation: the obligation to exchange information and the obligation to consult or negotiate. The duty to exchange information takes the form of publicity, notification, and other exchanges, whereas the duty to consult or negotiate appears to be an implicit expression of the duty to cooperate rather than an express legal obligation. POLICY IMPLICATIONS • The different wording utilized by the 162 states that have signed UNCLOS and the consequent variations of interpretation show that there is a need for policy changes. Otherwise, the lack of uniform adherence to the convention could make UNCLOS the subject of ridicule. • Given the convention’s silence regarding the manner of publicity and the implicit nature of certain provisions, negotiations for an amendment to UNCLOS are needed to clarify the complexity evident in the varieties of obligation. • Policymakers must bear in mind that the duty to cooperate cannot be fulfilled by a onetime act. Rather, cooperation is a continuing process, and states thus must be willing to pursue and endure negotiations through which they can hold each other accountable. • Domestic legislation in line with UNCLOS provisions is needed to ensure the compliance of member states, given that many Asian states do not directly implement treaty provisions but instead adopt similar domestic laws that courts then apply. 25 UNCLOS AND THE OBLIGATION TO COOPERATE u LEE I an Townsend-Gault’s essay places maritime cooperation in the context of the development of the international law of the sea since 1945, as well as the larger goals of sustainable development of marine resources, and environmental and ecological protection and preservation. There is a role for international law in securing these objectives. The salient legal provisions are found in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The context in which these provisions were drafted has already been explored. This essay subjects them to a close analysis in order to determine the extent to which states are legally bound to act together with their maritime neighbors in any way, shape, or form. There are many different expressions of obligations in UNCLOS, both substantive and procedural. In fact, the convention could be considered a prime example of obligations run amok. Typical expressions used in UNCLOS are “shall publish,”1 “shall notify,”2 “shall communicate,”3 “shall cooperate,”4 “shall enter into negotiation,”5 “should cooperate,”6 “may cooperate,”7 “shall seek to agree upon,”8 “shall promote international cooperation,”9 and so forth. Such language is so obtuse and vague that, in order to convey any real meaning, one must cross-reference and utilize contextual clues. Sometimes, other inserted phrases such as “seek to,” “should,” and “make every effort to,” seem to weaken the mandatory nature of the obligation, making it difficult to understand their respective impacts. This essay points out the various types of obligations in an effort to help the reader understand more clearly the seemingly complex provisions in the convention. It is important to note that the substantive duty to cooperate, unlike a procedural duty, is a duty of a continuing nature—an obligation of conduct rather than a one-time commitment or result. Ultimately, clearer and more explicit provisions may be necessary to ensure full and continued compliance with the convention. The General Obligation of Cooperation in International Law International law demands and requires cooperation among states, a duty that can be traced back to the UN Charter, as well as other treaties and international jurisprudence. The UN Charter, with its near universal membership of 193 states, is an important source of the obligations of cooperation. The charter requires its members in Article 2...