11: Systemic integration, the law of the sea, and courts: constraints and opportunities for ocean governance

Abstract

The United Nations Convention on the Law of the Sea (UNCLOS) exists alongside other treaties governing climate change, human rights, species protection, marine biodiversity, fisheries subsidies, trade liberalization, and other issues. Are the laws incompatible? Do they undermine one another? Which law prevails? In a striking recent decision, the International Tribunal for the Law of the Sea (ITLOS) has endorsed UNCLOS's ‘open character’, finding that it contains specific obligations concerning climate change and the marine environment. These specific obligations would not be satisfied simply by states’ compliance with obligations and (voluntary) commitments under the Paris Agreement, yet their meaning and application integrate the 1.5°C temperature goal and other aspects of the climate regime. This chapter contrasts political science analyses of ‘gaps’ and ‘overlaps’ in ocean governance with research on the legal methods and techniques of international lawyers in regime interaction. It analyzes the ITLOS advisory opinion in addition to cases from other courts and tribunals, showing the centrality of international adjudication in systemic integration. It also shows why convergence is not always desirable by broadening the research agenda for international lawyers to consider plural responses to the ocean's needs and ailing health.