Judicial Law-Making and the Developing Order of the Oceans

This article explores the powers of courts and tribunals in developing the legal order of the oceans. It is generally accepted that the rules of treaty interpretation allow courts to look beyond the strict confines of a treaty to other sources of evidence. Such an approach allows an evolutionary interpretation which takes into account the contemporaneous views of the parties. In practice, courts and tribunals have adopted a pragmatic approach to the interpretation of the 1982 Law of the Sea Convention in light of other rules of international law. By doing so, they promote flexibility in the Convention regime, albeit at the risk of undermining the transparency and legitimacy of their decisions. In the context of the applicable law, the 1982 Convention seeks to safeguard itself against change by asserting priority over other sources of law. From a practical perspective, the role of courts in developing the Convention is limited by the fact that few decisions have come before the courts to date. Thus, it is clear that courts by themselves cannot provide a satisfactory mechanism for change in the legal order of the oceans.