Private actors as rights-holders under the international law of the sea

Abstract

The goal of this thesis is to provide a human-based narrative of the international law of the sea, i.e. to assess to what extent are private actors rights-holders under the current law of the sea rules. This thesis is aware that the international legal order was built upon the totemic position of States, leaving private actors in the grey areas of international law. Hence, Part I of this thesis is aimed at determining the theoretical and historical bedrocks for the building of a human-based narrative of the law of the sea, by determining that private actors are ipso facto legal subjects in any legal order (including international law) provided that they are apt to be recipients of rights or duties under the law, and that the exclusion of private actors from international law is a contingent phenomenon, not an absolute dogma. In Part II, this thesis is aimed at determining three cases where private actors are equipped with entitlements under the law of the sea. The first case refers to navigational rights and freedoms, which, in the view of this thesis, are also held by private actors. This case was selected for it documents how a human- based narrative of the law of the sea can provide a new reading to the existing law of the sea rules and therefore unveil (and recover) private actors’ entitlements. The second case refers to the rights emerging from the activities in the Area, notably the exclusive rights of exploration for and exploitation of resources, and the ownership rights over the collected minerals. This case is evidence of how the legal status of private actors has been fostered by the conferral of new rights and duties to private actors, subjected to the principle of the common heritage of mankind. The third case refers to the procedural capacities of private actors, namely as amicus curiae and as applicants in prompt release proceedings or in deep seabed dispute settlement means. These procedural rights are meagre, but at least they have the potential of admitting private actors into the downstream production of international law. Finally, Part III of this thesis is aimed at determining how the position of private actors can be fostered by cross-regime interpretation under international law. Considering the law of the sea and human rights law in particular, this thesis assesses how the interaction between the ECHR and the LOSC uncovers new private actors’ entitlements.

Date of Award	1 Mar 2019
Original language	English
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Maria da Glória Garcia (Supervisor) & Irini Papanicolopulu (Supervisor)