Deep dive into an ocean of law

What is ‘unconventional lawmaking’? First, it is necessary to consider what is meant by ‘conventional lawmaking’. In this thought-provoking book, Dr Natalie Klein uses the United Nations Convention on the Law of the Sea (LOSC) as an example of the latter. The LOSC is a treaty negotiated in an international conference and entered into by 168 parties, including the EU. According to Dr Klein, this makes the LOSC one of the most reputable formal agreements in the field of international law, and failure to comply raises the issue of state responsibility.

Unconventional lawmaking, by contrast, is a reference to informal agreements which can include memorandums of understanding, circulars, ‘gentlemen’s agreements’ and codes of conduct. These are sometimes referred to as ‘soft law’ and often involve the participation of non-state actors; this, we are told, enhances good governance through improved transparency and enhanced cooperation.

The goals of such informal agreements are often different to those of formal agreements. Goals may be aspirational, functional and tailored for responding to a specific international concern, or aimed at establishing standards of conduct. One important function of ‘soft law’ is to plug the gaps in the formal law (to ‘thicken’ a treaty) which can be of most use when there are difficulties in amending or modifying existing treaties. Importantly, the informal agreement might not be legally binding.

However, Dr Klein is keen for the reader to be aware ‘there is no clear dividing line between formal and informal law’. We are also made aware of inherent risks in the unconventional approach to lawmaking. For example, states may view informal commitments as a replacement for more formal law and less thought may be given to negotiations leading to commitments that may undermine formal law or which are inadequate in terms of addressing the risks or threats in question.

Dr Klein and the other contributors (all women scholars) consider two key questions. Why does unconventional lawmaking matter? And what are the consequences of informal lawmaking for the law of the sea? The chapters range from Maritime Security, including the international response to piracy, to Marine Environment and the establishment of sustainable development goals.

We discover how informal lawmaking is being used to address issues arising from the threats posed by climate change; in the face of rising sea levels, Pacific island states have taken the opportunity to use ‘soft law’ to fix their coastal baselines and maritime zones.

The major strength of this book is in the analysis of the interaction between formal and informal lawmaking. It will be of value to anyone interested in how lawmaking is constantly evolving to deal with the challenges of the modern age.

Kevin McVeigh is a partner at Elliott Duffy Garrett, Belfast