Expanding the Environmental Regulatory Scope of UNCLOS Through the Rule of Reference: Potentials and Limits

Abstract

As “the Constitution for the Ocean,” the 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides a general normative framework for the regulation of ocean space. The finer details and specific obligations contained in UNCLOS are elaborated through the use of various techniques and mechanisms—one of which is the “rule of reference.” The “rule of reference” is a technique that incorporates existing rules and standards contained in external instruments into UNCLOS. As such, the rule of reference raises interesting questions regarding the extent to which it allows UNCLOS to deal with challenges that are not—or not sufficiently regulated—under the Convention. Such an inquiry requires a balancing exercise between, on the one hand, the cardinal principle of state consent under international law and, on the other, the need for UNCLOS to grow and adapt to new challenges. This article seeks to address this balance through the application of the rule of reference to two current challenges to the oceans, namely, climate change and conservation of marine biodiversity, in order to identify the room available for and the limits of using the rule of reference to expand the environmental regulatory scope of UNCLOS.