That the Law of the Sea Convention faces implementation challenges is nothing new; it is, as many have noted, a framework and a scaffold - a constitution for the oceans - which necessarily left many matters of detail to future negotiation, associated instruments, and state practice. What has emerged over the last two decades, however, is an increasing reluctance on the part of states to pursue implantation via new, more detailed, treaty commitments. This article explores alternative options for enhancing Law of the Sea Convention compliance - options that do not necessarily require the 'more law' path to granularity and implementation. The analysis begins by describing the amenability of the LOSC to refinement processes, focusing upon its flexibility (including its ‘constructive ambiguity’) and conduciveness (the significant allowance built into the LOSC for domestic contextualization, interpretation, and implementation). With this background established, the analysis then explores four alternative pathways to facilitating and reinforcing compliance - pathways that do not involve the negotiation of additional hard law or mixed hard/soft law instruments, nor the establishment of new governance institutions. The first alternative is to employ a ‘process’ approach, noting the relative success of this option in the maritime domain as represented by the Proliferation Security Initiative (PSI) and the Contact Group on Piracy off the Coast of Somalia (CGPCS). The second alternative approach is the adaptable employment of existing rules to meet an evolving governance challenge - the issue of privately contracted armed security personnel (PCASP) being a case study on point. The third option is to apply refined interpretive endeavors to existing authorizations which have hitherto been subject to relatively superficial analysis and application – for example, in relation to vessels without nationality (VWON) and counter-drug interdictions at sea. The fourth option is the employment of existing but under-utilized LOSC-based or LOSC-leveraged mechanisms and authorizations - such as Article 17 of the Vienna Convention on Traffic of Narcotic Drugs and Psychotropic Substances 1988 - in new or expanded ways.
Reinforcing the Law of the Sea Convention of 1982 Through Clarification and Implementation,
Ocean & Coastal L.J.
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol25/iss1/4