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.

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.

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.

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 begins by emphasising that scientific research is vital if the oceans are to be wisely used and managed. The UN Convention on the Law of the Sea introduces a detailed regime for the conduct of marine scientific research. After considering the meaning of ‘marine scientific research’, a term frequently used in the Convention but nowhere defined, the chapter analyses the relevant provisions of the Convention. It explains how the requirement of prior consent for research carried out in a coastal State’s maritime zones operates. The chapter continues by discussing the general principles for the conduct of marine scientific research laid down by the Convention; its provisions encouraging research, particularly through international co-operation (given effect to through bodies such as the UN Educational, Scientific and Cultural Organization’s Intergovernmental Oceanographic Commission): and its regulation, albeit rather limited, of the legal status of research installations and equipment. The chapter argues that the Convention’s apparent paradigm for the conduct of marine scientific research, namely by a dedicated research vessel, has become dated as research is increasingly carried out by an array of unmanned fixed and floating devices and by remote sensing from satellites in outer space. The chapter ends by considering other regimes that govern the conduct of specific types of research, such as those of the International Whaling Commission and the Antarctic Treaty System.

The high seas comprise all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. After considering the definition and legal status of the high seas, the chapter analyses the concept of the freedom of the high seas, noting the controversies arising in this regard given the non-exhaustive list of examples provided in the UN Convention on the Law of the Sea. It then provides a detailed assessment of jurisdiction on the high seas, explaining that whilst the legal regime of the high seas has traditionally been characterised by the dominance of the principles of free use and the exclusivity of flag State jurisdiction, in practice the picture is very different. It considers this issue with respect to piracy and other threats to the safety of navigation, unauthorised broadcasting, slavery, people and drug trafficking, ships of uncertain nationality and stateless ships. It concludes with a section addressing the right of hot pursuit and constructive presence.

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.

Under the UN Convention on the Law of the Sea, States are entitled to claim four maritime zones off their coasts (territorial sea, contiguous zone, exclusive economic zone and continental shelf) within which they have sovereignty, sovereign rights or jurisdiction, as explained in chapters four, seven, eight and nine. The outer limits of these four zones are, respectively, twelve, twenty-four, 200 and up to 350 nautical miles. Those distances are measured from what is known as the ‘baseline’. The latter is normally the low-water line. However, in certain circumstances other lines may be used as the baseline. This chapter explains how the low-water line is determined and the circumstances in which other lines may be used as the baseline. Such lines include those connecting the outermost points on coasts that are deeply indented and/or fringed with islands and those drawn across the mouths of bays, rivers and harbour entrances. The chapter also considers the role of islands in the application of baselines, as well as the effect on baselines of predicted increases in sea levels.

After explaining that internal waters are those marine areas on the landward side of the baseline and that States have sovereignty over such areas, this chapter considers particular aspects of that sovereignty in detail. The first is the right of access for foreign vessels to ports and other internal waters. The second is the coastal State’s jurisdiction, both legislative and enforcement, over foreign vessels in its internal waters under customary international law, together with the specialised jurisdiction over foreign vessels in its ports conferred by some treaties.

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.

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.