Manchester Digital Textbooks
The law of the sea is an up-to-date and comprehensive treatment of this branch of public international law. It begins by tracing the historical origins of the law of the sea and explaining its sources, notably the 1982 UN Convention on the Law of the Sea. This is followed by chapters examining the various maritime zones into which the sea is legally divided, namely internal waters, the territorial sea, archipelagic waters, the contiguous zone, the continental shelf, the exclusive economic zone, the high seas and the International Seabed Area. In each case the legal nature of the zone and its physical dimensions are analysed. Separate chapters deal with the baselines from which the breadths of most maritime zones are delineated and the law governing the delimitation of boundaries between overlapping maritime zones. Later chapters discuss how international law regulates the safety of navigation, fisheries and scientific research, and provides for protection of the marine environment from pollution and biodiversity loss. The penultimate chapter addresses the question of landlocked States and the sea. The final chapter outlines the various ways in which maritime disputes may be settled. Throughout the book detailed reference is made not only to the UN Convention on the Law of the Sea, but also to other relevant instruments, the burgeoning case law of international courts and tribunals, and the academic literature.
This chapter details the special legal regime that the UN Convention on the Law of the Sea lays down for archipelagos belonging to archipelagic States. The latter are States (such as Indonesia and the Philippines) that consist exclusively of one or more archipelagos and possibly other islands. An archipelagic State may draw lines around the outermost points of an archipelago, known as archipelagic baselines, from which its maritime zones (territorial sea, contiguous zone, exclusive economic zone and continental shelf) are delineated. The waters enclosed by archipelagic baselines are known as archipelagic waters. They are subject to the sovereignty of an archipelagic State. Nevertheless, other States have the right for their ships to traverse archipelagic waters under the regime of innocent passage (on which, see chapter four), and in routes normally used for international navigation, the more extensive right of archipelagic sea lanes passage, which is akin to transit passage through straits (on which, see chapter five). Immediately neighbouring States may also exercise traditional fishing and other non-navigational activities in archipelagic waters.
The UN Convention on the Law of the Sea identifies six sources of marine pollution. They are: pollution from ships (such as discharges of oil, noxious chemicals, sewage, garbage and ballast water containing invasive species); the dumping of waste by ships and aircraft; pollution resulting from exploitation of the continental shelf for petroleum and minerals; pollution resulting from the exploitation of the mineral resources of the Area, that is the seabed beyond the continental shelf (see further chapter twelve); pollution from sources on land; and pollution from or through the atmosphere. The Convention itself contains no detailed measures to control pollution from the six sources that it identifies. Instead, the international community has adopted a substantial network of global and regional treaties for this purpose, including treaties designed to curb emissions of greenhouse gases The latter are causing the oceans to warm, sea water to become more acidic and sea levels to rise, all of which are harming the marine environment. This chapter outlines the standards to control marine pollution that have been set by the various treaties for each source of pollution; explains how they are implemented and enforced; and assesses how effective they have been. The chapter also considers the response required of States where a pollution incident has occurred, as well as the question of compensation for damage caused by marine pollution.
The decline in marine biodiversity and the reasons for it were outlined at the beginning of chapter fifteen. This chapter is concerned with analysing, and assessing the effectiveness of, the large number of treaties and other measures adopted by the international community designed to conserve marine biodiversity. Some of these instruments focus on protecting habitats or conserving particular species, while others seek to do both by taking a more holistic approach. Among the latter examined in this chapter are the UN Convention on the Law of the Sea (including the mining code for the Area being elaborated by the International Seabed Authority), the Convention on Biological Diversity and regional marine environmental treaties. The chapter also looks at the establishment of marine protected areas; other area-based measures, such as the International Maritime Organization’s particularly sensitive sea areas; and the ongoing UN negotiations to develop a legally binding instrument to conserve biodiversity (including marine genetic resources) in areas beyond national jurisdiction. The remainder of the chapter considers treaties to protect habitats (focusing on the Ramsar Wetlands Convention and the UN Educational, Scientific and Cultural Organization (UNESCO)’s World Heritage Convention) and to conserve species, especially those concerned with migratory species, cetaceans, sharks and seabirds. The chapter concludes that while there have been some successes, international law has so far failed to conserve marine biodiversity adequately.
Many parts of the ocean are badly polluted and suffering from a serious loss of biodiversity as a result of human activities. After outlining the causes of this state of affairs, this chapter explains the framework of international law that has been designed to protect the marine environment. It discusses the approach of the UN Convention on the Law of the Sea to controlling pollution, including its definition of marine pollution, and to conserving marine biodiversity. The chapter also introduces other global treaties for protecting the marine environment and various regional treaties, including those developed under the UN Environment Programme’s Regional Seas Programme. The detailed provisions of all these treaties are examined in the following two chapters. In this chapter attention is also drawn to the fact that international human rights law is beginning to be used to protect the marine environment. In addition, the chapter considers a number of principles that have been developed by the international community to guide environmental policy-makers and legislators. They include: the no harm principle; environmental impact assessment; the precautionary principle; the polluter pays principle; sustainable development; the ecosystem approach; co-operation; and the principle of common but differentiated responsibility.
Most human activities at sea are conducted by or from ships, including the transport of around 90 per cent of all goods that are internationally traded. This chapter focuses on the way in which international law regulates the safety and seaworthiness of ships and the well-being of their crews. It begins by outlining the framework for such regulation, examining the varying roles of the International Maritime Organization (IMO), International Labour Organization (ILO), flag States (including the law governing the grant of nationality to a ship), coastal States and port States (including their competence to regulate foreign ships visiting their ports). The chapter continues by examining the standards for safety and seaworthiness that have been adopted by the IMO, and the ways in which those standards are implemented and enforced. That includes examination of the IMO’s mandatory audit scheme; the role of port States in inspecting ships and detaining them if they are unseaworthy; and the co-ordination of port State control activities at the regional level. The chapter then turns to examine the measures that have been prescribed by the IMO and ILO to protect and promote the well-being of seafarers, as well as the role of human rights treaties in this regard. The chapter ends by examining ships’ routeing and other measures designed to prevent collisions and ships running aground.
There are various ways in which disputes concerning the law of the sea may be settled peacefully. This chapter begins by providing an overview of how disputes are settled under general international law, considering first the role of municipal courts and diplomatic protection before then summarising the various ways in which inter-state disputes may be settled peacefully. It then sets out the mechanisms for the settlement of disputes under the UN Convention on the Law of the Sea, analysing the provisions of Part XV in detail, including its elaborate compulsory dispute settlement provisions (with reference to the relevant case law). It concludes by considering two general issues concerning dispute settlement, namely locus standi and the rules for treaty interpretation.
‘Strait’ is not a term of art, and it is not defined in any of the conventions produced by the United Nations Conferences on the Law of the Sea. It bears its ordinary meaning, being ‘geographically, a narrow passage between two land masses or islands or groups of islands connecting two sea areas.’ It is the legal status of the waters constituting the strait and the fact of their use by international shipping, rather than any definition of ‘strait’ as such, that determines the rights of coastal and flag States in the waters of the strait. This chapter first considers the rules governing straits prior to the UN Convention on the Law of the Sea (UNCLOS), before turning to a detailed analysis of the UNCLOS regime, notably the transit passage through straits used for international navigation, established by Part III of the Convention. It addresses a coastal State’s legislative jurisdiction and the (less clear) scope of a coastal State’s enforcement jurisdiction. It considers the issue of whether there is a right similar to transit passage through international straits as a matter of customary international law. The chapter concludes by noting special regimes which regulate passage through particular straits.
The territorial sea is the first coastal State maritime zone seawards of the baseline and internal waters. This chapter traces its development as a concept, and then addresses the current legal status of the bed, subsoil and superjacent air space of the territorial sea. The breadth of the territorial sea is explained, with reference to relevant State practice. The chapter provides a detailed analysis of the right of innocent passage, including of warships and ships carrying hazardous cargoes, and of the right to deny and suspend passage. Other rights, as well as the duties, of the coastal State are discussed, including the scope of its legislative and enforcement jurisdiction over foreign vessels.
Developing States have long argued that the lack of appropriate technology is an obstacle to their development. During the 1970s the UN General Assembly adopted a number of resolutions calling for the mandatory transfer of technology. While never accepted by developed States, those calls left their mark on the UN Convention on the Law of the Sea. As originally drafted, Part XI required those engaged in mining in the Area to transfer relevant technology to developing States. However, the Implementation Agreement (1994) removed that obligation, as explained in chapter twelve. This chapter examines other provisions in the Convention on the transfer of technology, notably those in Part XIV, which is exclusively concerned with the topic. It is argued that the provisions of Part XIV are purely hortatory, not least because they do not adequately address the intellectual property issues involved in the transfer of technology. The chapter goes on to discuss the ‘Criteria and Guidelines on the Transfer of Marine Technology’ adopted by the UN Educational, Scientific and Cultural Organization’s Intergovernmental Oceanographic Commission and action taken thereunder. The last part of the chapter suggests that over the years the emphasis in international fora has shifted from the transfer of technology to capacity-building, as the latter is a less politically loaded term and broader in concept. Examples are given of capacity-building in relation to ocean affairs undertaken by international organisations.