Informal Lawmaking and the Future of the Law of the Sea: Developing Legal Infrastructure and Regulating Human Activity

This chapter identifies different ways in which informal instruments matter in the law of the sea. The analysis suggests that how informal and formal instruments interact, and how informal instruments matter, depends on context. The discussion distinguishes between the legal infrastructure (or jurisdictional framework) of the law of the sea, and the regulation of human activity. The former involves lawmaking processes in which decisions are taken regarding the competences of states and other actors to regulate human activities. The analysis illustrates that the inter relationship between the global South and global North plays an important role in this context. The latter concerns the regulation of human activity through inter-state cooperation, as well as private standard setting. The chapter suggests that lawmaking for the purposes of regulating human activities might best be conceptualized as the development of global administrative law. It also suggests that understanding how informal instruments matter is important for furthering good ocean governance.