Law
Fish from the sea have long been an important source of food for many human communities. The degree to which this will continue depends on how well marine fisheries are managed. However, various biological and socio-economic factors mean that such management is not easy, as the beginning of this chapter explains. The chapter continues by analysing the array of treaties and soft law instruments that attempt to provide for effective fisheries conservation and management, both within and beyond national jurisdiction. This body of law includes: the UN Convention on the Law of the Sea; the UN Fish Stocks Agreement; the UN Food and Agriculture Organization (FAO) Compliance and Port States Measures Agreements; measures adopted by regional fisheries management organisations and arrangements; various UN General Assembly resolutions, especially those concerning high seas drift-net fishing and vulnerable marine ecosystems; the Code of Conduct for Responsible Fisheries; and the FAO’s International Plans of Action, notably that on Illegal, Unreported and Unregulated (IUU) Fishing. The chapter demonstrates that this substantial body of measures has failed to prevent the unsustainable exploitation of around one-third of all fish stocks; the adverse impact of the fishing industry on species other than fish, including dolphins, turtles and seabirds; and the damage caused by fishing gear to vulnerable and ecologically important habitats. Various reasons for this failure are suggested.
Covering around 54 per cent of the total area of the world’s oceans, the International Seabed Area (known as ‘the Area’) is defined in the UN Convention on the Law of the Sea as the ‘seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction’. This chapter begins by explaining the background to the current legal regime of the Area, tracing developments from the time when it was first realised that seabed mining was a commercial possibility. It then analyses the current legal regime, as set out in Part XI of the UN Convention and the 1994 Implementation Agreement, and supplemented by regulations and procedures issued by the International Seabed Authority (ISA). It addresses in detail the roles of the various organs of the ISA, as well as the current system of exploitation, including the role of the sponsoring State, the regulations currently in place addressing the prospecting and exploration of deep seabed minerals, as well as the draft regulations addressing their exploitation. Finally the principle of the Area and its resources as the ‘common heritage of mankind’ is analysed, and in this context the environmental issues of mining are highlighted.
This chapter outlines the scope of the book and provides the context for the following chapters. It summarises the early development of the law of the sea, before turning to the sources of the modern law of the sea, notably international conventions, customary international law, general principles of international law, judicial decisions and the writings of publicists. Having tracked the codification of the law of the sea prior to the adoption of the UN Convention on the Law of the Sea (UNCLOS), the chapter explains the process by which UNCLOS was negotiated, adopted and entered into force, as well as the status of reservations and declarations made by certain States. The relationship of UNCLOS to other treaties and customary international law is then addressed, followed by sections explaining the compliance mechanisms of UNCLOS, the annual cycle of its review, the means by which UNCLOS has been developed, and the notion of UNCLOS as a constitution. The role of international organisations in developing the law of the sea is also outlined. The chapter concludes by providing a helpful and practical summary of materials on the law of the sea.
Landlocked States, of which there are forty-three, cannot use the sea unless they have the right to grant their nationality to ships and the right to access the sea across the territory of adjoining States. This chapter begins by explaining that the former right has been guaranteed under international law for a century or more. The chapter goes on to explain that under the UN Convention on the Law of the Sea, landlocked States also have the right to exercise the freedoms of the high seas, to engage in activities in the Area and, to a limited degree, to exploit the living resources of the exclusive economic zones of States in the same region. However, a right of transit across adjoining States’ territory to access the sea has proved more problematic. The chapter shows that while such a right is granted under a number of multilateral treaties, including the Convention, it is always subject to qualifications. More robust rights are provided by an array of bilateral and regional agreements. In recent years the international community has focused on non-legal, practical measures to facilitate transit, notably in the Almaty (2003) and Vienna (2014) Programmes of Action.
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.