12.2 Deployment of FNPPs Outside Territorial Waters

At the time of writing, the only currently operating FNPP is the Akademik Lomonosov, located in Pevek, Russia; however, before the construction, deployment, and commissioning of the Akademik Lomonosov, discussions about the siting of FNPPs both within and beyond territorial waters took place in the early 1970s. The same questions regarding the law of the sea are being asked today as were asked back then. In 1974, a study conducted by Oak Ridge National Laboratory (ORNL) and the University of California, Los Angeles (UCLA) investigated the initial feasibility of the construction and operation of an FNPP within the 3-mile territorial limit of the US (Hammond and Okrent Reference Hammond and Okrent1974, 136). The ORNL and UCLA studied different platform configurations for FNPPs, including barge-type structures, semisubmersible oil-drilling platforms, and multipoint mooring structures, as well as the various safety and geographic considerations for their deployment (Hammond and Okrent Reference Hammond and Okrent1974, 133).

Additionally, the ORNL and UCLA study surveyed the domestic and international legal landscape for the deployment of FNPPs within and beyond territorial waters (Hammond and Okrent Reference Hammond and Okrent1974, 136). This work recognized that the siting of an “offshore nuclear power station” would fall into “different classes depending not on the depth of the water but on how far the station is from the coastline” (Hammond and Okrent Reference Hammond and Okrent1974, 136). The analysis parsed the jurisdictional issues with siting an FNPP within State waters, which are those waters from the coastline to approximately 3 nautical miles, and the overlap with federal jurisdiction (Hammond and Okrent Reference Hammond and Okrent1974, 136). This work went beyond 3 nautical miles to address the federal jurisdiction controls out to 12 nautical miles (Hammond and Okrent Reference Hammond and Okrent1974, 136). Beyond the 12-nautical-mile mark, the authors identified ambiguities within both US law and the international law of the sea framework at the time for understanding the rights and responsibilities involved with FNPP deployment (Hammond and Okrent Reference Hammond and Okrent1974, 136). At the time, their analysis did not identify specific nonproliferation frameworks, except for acknowledging the need to protect against possible sabotage of the FNPP (Hammond and Okrent Reference Hammond and Okrent1974, 136). When the ORNL and UCLA conducted their study in 1974, neither the Convention on the Physical Protection of Nuclear Material (CPPNM)Footnote ⁶ nor the Non-Proliferation Treaty (NPT)Footnote ⁷ existed. The sole concern outside of nuclear safety was the identification of a possible sabotage attempt against the nuclear power plant (Hammond and Okrent Reference Hammond and Okrent1974, 136).

Around the same time as the ORNL and UCLA study, the US Nuclear Regulatory Commission considered a licensing application for the construction of FNPPs off the coast of Jacksonville, Florida, with subsequent siting and deployment of FNPPs off the coast of New Jersey (OTA 1976, 197). In 1976, the Office of Technology Assessment (OTA) reported on the US Nuclear Regulatory Commission’s analysis and the siting, deployment, and regulatory considerations for an FNPP deployment off the coast of New Jersey, specifically identifying that the power plant will be inside the 3-nautical-mile limit. This would place it fully under federal and State jurisdiction, consistent with the findings of the ORNL and UCLA study (OTA 1976, 207). The OTA study did conclude that the FNPP would be segregated from major shipping traffic, specifically the Atlantic coastal shipping lanes (OTA 1976, 207).

The ORNL and UCLA study and the OTA analysis focused primarily on the domestic deployment of FNPPs in the US. In contrast to the OTA study, which focused solely on the siting of the FNPP within the 3-nautical-mile limit, the ORNL and UCLA study acknowledged the different maritime zones, drawing the conclusion that further research was needed to understand FNPP deployment in international waters (Hammond and Okrent Reference Hammond and Okrent1974, 136). In contrast, Marlowe Blake’s Reference Blake1978 analysis of FNPP deployment on the high seas considers FNPPs deployed in the high seas and the implications of the international law of the sea, including environmental protection and fisheries management (Blake Reference Blake1978, 197–199). Blake begins with the New Jersey deployment of a possible FNPP but then examines the possibility of FNPPs in the high seas beyond New Jersey, though the context and rationale for the extension of FNPPs to the high seas only went so far as to postulate: “Is FNPP deployment considered a ‘reasonable use’ of the High Seas?” (Blake Reference Blake1978, 197–199). Blake’s legal analysis for FNPP deployment and the reasonableness of such use of the high seas are discussed later. This early analysis highlights that such questions were already being asked and are resurfacing today.

Although prior and current applications include electrical power production for communities and district heating, FNPPs are also being considered to support decarbonization efforts across multiple sectors, including the offshore oil and gas industry (World Nuclear News 2023). As part of its 2021 study “Rethinking Deployment Scenarios for Advanced Reactors,” the Electric Power Research Institute (EPRI) analyzed the use of FNPPs in various offshore production supply chains, including ammonia production, commercial airline fuel production, desalinization of water, and support to the offshore oil and gas industry (EPRI 2021). Focusing on offshore oil and gas production, EPRI’s report highlighted the modularity of the oil and gas industry infrastructure, and this modularity increases the possibility for interfacing and integrating with small modular reactors or FNPPs that could be deployed to support offshore oil and gas extraction (EPRI 2021, 8). Additional research by Bernini confirmed EPRI’s analysis that FNPPs could be used to support offshore oil and gas extraction (Bernini Reference Bernini, Kraska and Park2022, 109). Specific examples cited by Bernini include the 2014 memorandum on the construction of an FNPP between Rosatom subsidiary Rosatom Overseas and China’s National Nuclear Cooperation (Bernini Reference Bernini, Kraska and Park2022, 114, citing World Nuclear News 2016). Additionally, Zou et al. demonstrated the configuration for deployment of an FNPP with an offshore oil rig, including the stand-off distance and safety distances between the FNPP, the oil rig, and associated infrastructure nearby (Zou et al. Reference Zou, Gong, Song, Zhao and Zhang2021). However, in their analysis, they noted that there are no international regulations for the emergency planning or restricted areas surrounding marine reactors (Zou et al. Reference Zou, Gong, Song, Zhao and Zhang2021). Consistent with such analysis, China’s General Nuclear Power Group signed a strategic cooperation agreement with China National Offshore Oil Corporation in 2016, proposing to use FNPPs to support China’s oil exploration in the Bohai Sea and the South China Sea (Bernini Reference Bernini, Kraska and Park2022, 114–115; see also Peachey Reference Peachey2016).

Because of the strong emphasis on decarbonization across multiple sectors, FNPP deployment outside territorial waters may become more prevalent. FNPP may support activities including oil and gas extraction, power generation to remote communities such as in the Arctic and remote islands, and the desalination of water. The use of FNPPs beyond a coastal State’s territorial waters revisits the questions posed by the ORNL and UCLA study, as well as Blake’s cautionary words about whether they represent a reasonable use of the high seas (Blake Reference Blake1978, 199; Hammond and Okrent Reference Hammond and Okrent1974, 136). This issue leads to further questions about the classification and categorization of FNPPs within the international legal frameworks, for both nuclear law and maritime law, leading to what has been described as lacunae across multiple legal domains (Steding Reference Steding2004).

12.3 Gordian Knot of Defining What Is an FNPP

FNPPs have been in existence in one form or another for the past fifty years, yet the international community has yet to achieve consensus about what comprises an FNPP. The challenge of defining what an FNPP is sits at the center of the proverbial Gordian knot of nuclear law and maritime law, with each legal domain bringing ambiguity to the discussion. For example, within the IAEA Nuclear Safety and Security Glossary (IAEA 2022a), there is no formal definition of a “nuclear power plant.”Footnote ⁸ Likewise, within maritime law and UNCLOS, the terms “ship” and “vessel” are used interchangeably, with no consensus on what constitutes a vessel (Walker and Noyes Reference Walker and Noyes2002).

In the current international discussion, identifying whether an FNPP is a vessel, cargo, or a facility, or some combination of the three, will instruct the rights, responsibilities, and corresponding nonproliferation measures associated with FNPPs and their operation under the law. However, even saying “the law” is ambiguous because the FNPP will operate across and within multiple legal regimes, including nuclear law, maritime law, and the law of the sea regime. What Bernini describes as “legal conundrums” for the status of FNPPs under nuclear and maritime law, in fact, presents foundational challenges to their deployment and operation within the UNCLOS framework (Bernini Reference Bernini, Kraska and Park2022, 120–121). Specific to nuclear security and nuclear safeguards, determining whether the FNPP is a vessel, or an installation, would add additional complexity about who is in control of the FNPP from the perspective of flag State jurisdiction and the applicable legal and regulatory framework.

FNPPs do not operate in a vacuum or in isolation from the greater discussion occurring on advanced nuclear reactors. In 2013, the IAEA explained, in its report Legal and Institutional Issues of Transportable Nuclear Power Plants: A Preliminary Study, that FNPPs are part of a larger class of small modular reactors known as transportable nuclear power plants (TNPPs; IAEA 2013a). In that report, the IAEA defined a TNPP as “a factory manufactured, transportable and/or relocatable nuclear power plant which, when fueled, is capable of producing final energy products such as electricity, heat, and desalinated water” (IAEA 2013a). Important for this discussion is a subsequent sentence of the definition developed by the IAEA: “The TNPP is physically transportable but is not designed to either produce energy during transportation or provide energy for the transportation itself” (IAEA 2013a, emphasis added). This second element of the definition highlights that the reactor on TNPPs, including on FNPPs, is for energy production, not for the structure itself: the reactor is intended to support shoreside or other activities.

12.4 Nonproliferation Norms and Their Role in FNPP Governance under UNCLOS

The principles established under nuclear nonproliferation instruments, including the NPT, CPPNM, and ACPPNM, do not stop at the coastline but permeate through the maritime zones established under UNCLOS. As Laura Rockwood, former section head for Non-Proliferation and Policy Making in the Office of Legal Affairs at the IAEA, explained: “The nuclear non-proliferation regime is a complex of varied and evolving instruments and measures intended to deter and detect the proliferation of nuclear weapons. It includes, inter alia, global and regional treaties on non-proliferation, export controls, [and] physical protection” (Rockwood Reference Rockwood, Nick and Burns2022, 357). Herbach goes further to acknowledge that the “interconnectedness of nuclear security and non-proliferation is clear,” with each being “founded on dealing with the risk of nuclear material being diverted to non-peaceful purposes” (Herbach Reference Herbach2021, 45). The challenge observed with the deployment of FNPPs into the EEZ of coastal States is that the deployment of fixed nuclear installations in these zones expands the application of nonproliferation norms beyond traditional approaches that have primarily focused on the transport of nuclear materials. Through the lens of the law of the sea regime, the EEZ is seeing an intensifying zonation compared to what was previously envisioned under UNCLOS (Ryan Reference Ryan2019, 10170). Included in this intensifying zonation are maritime security and, by extension, national security considerations that begin to pull the EEZ further under a coastal State’s exclusive national jurisdiction (at least in theory; Ryan Reference Ryan2019, 10170).

For FNPPs, there are two questions: How far do the nonproliferation obligations of coastal States reach into the EEZ? And how are nonproliferation obligations balanced with the interests of coastal States if an FNPP is flagged and operating under the nonproliferation requirements of the flagging State? These questions were posed during the IAEA FNPP symposium in November 2023 (IAEA 2023b, 3:55:56). In response, an IAEA representative from the Office of Legal Affairs explained that, with respect to CSAs, it is a “principle of international law, this is an agreement between a state and us, the international organization [IAEA], and territorial scope of application is determined by the state” (IAEA 2023b, 3:56:18). When further elaborating on the jurisdiction considerations in relation to UNCLOS, the IAEA representative explained that “maritime territories are defined in accordance with UNCLOS by the States parties” and that “if a State with a Comprehensive Safeguards Agreement [CSA] decides to operate a TNPP in its territorial waters or contiguous zone, the State must inform the Agency [IAEA] accordingly and provide information on the design and nuclear material used in reactor” (IAEA 2023b, 3:56:26–3:56:34). For the EEZ, the IAEA representative concluded that “it’s for the State to decide [on the EEZ] and the State to take into consideration relevant provisions of the UN Convention on the Law of the Sea of 1982” (IAEA 2023b, 3:57:00).

In its statement, the IAEA identifies the need for the State to identify within the CSA the scope of territorial application for consideration of safeguards and, by extension, nuclear security; however, in both cases, FNPP deployment and the extension of nonproliferation norms may yield questions about whether such an extension further brings the EEZ under the exclusive national jurisdiction of the coastal State. This section explores some of the specific contours of the intersection of nonproliferation norms with the law of the sea regime and provides a theory for the extension of nonproliferation norms that aligns with the jurisdictional thresholds established under UNCLOS.

12.5 Mutually Reinforcing Regimes: Nonproliferation and the Law of the Sea

In both nonproliferation and the law of the sea regimes, a central tenet that can be drawn is the need for control, whether regulatory control of nuclear material or the establishment of jurisdiction as highlighted under the UNCLOS regime. FNPPs illuminate a challenge with establishing who is in charge, primarily from the lens of jurisdiction, and whose legal regime applies. Although some contend that FNPPs and States that register FNPPs under their flag are bound by UNCLOS, such an analysis is highly dependent on the location of the FNPP and whether coastal State law applies or that of the flag State (Steding Reference Steding2004, 732–737).Footnote ²⁰ As an annex to the 2013 IAEA TNPP report, the IAEA did consider the role of bilateral agreements as a mechanism to facilitate the deployment of TNPPs and, by extension, FNPPs (IAEA 2013a, 59). Under this mechanism, the role of bilateral agreements included “an overarching long-term framework agreement covering nuclear cooperation in general, supplemented by one or several detailed agreements or memoranda of understanding specifically related to the technical and legal requirements of the supply of a TNPP” (IAEA 2013a, 59). The concern with bilateral agreements is that when the bilateral agreement seeks either to divest a country of nonproliferation obligations or responsibilities or to exclude the FNPP from regulatory controls of the coastal State, the bilateral agreement could be viewed as a vehicle to circumvent obligations or divest security or safeguards obligations to the State supplying the FNPP. Divesting such responsibility would not only undermine efforts at universalization but also cause turmoil to key tenets of both nuclear security and nuclear safeguards frameworks.

In the alternative, prior research into the relationship between oil rigs and their responsibilities to coastal States when operating in the EEZ provides a seamless parallel for possible arrangements for FNPPs to operate in the EEZ and with respect to nonproliferation obligations (Richards Reference Richards2011, 408). Richards’s analysis that oil rigs operating in the EEZ should be construed as facilities when fixed establishes them as installations under Article 56 of UNCLOS (Richards Reference Richards2011, 408). As a result of this classification, the coastal State can exert jurisdiction over the oil rig commensurate with Article 56 of UNCLOS (Richards Reference Richards2011, 408).

If the same logic that Richards applies to oil rigs is applied to FNPPs, the following conclusions can be drawn. First, such an interpretation of FNPPs as installations when fixed would be consistent with the INLEX decision discussed by Bernini in her analysis of small modular reactors and TNPPs operating under the UNCLOS regime (Bernini Reference Bernini, Kraska and Park2022, 129).Footnote ²¹ Once the FNPP is determined to be an installation, regardless of the flag registration, the coastal State would in theory be able to extend its nonproliferation obligations over an FNPP operating within its EEZ. This is confirmed by Leopardi’s conclusion that an Ocean Nuclear Power Plant (ONPP) would be authorized by the coastal State (Leopardi Reference Leopardi2024, 11). In practice, this would include the FNPP being included under the coastal State’s CSA and Additional Protocol for safeguards purposes. For the purposes of nuclear security, the FNPP would conform to the legislative and regulatory requirements of the host State rather than the supplier State.Footnote ²² This would also include obligations under other counterterrorism agreements, such as the International Convention for the Suppression of Acts of Nuclear TerrorismFootnote ²³ and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf.Footnote ²⁴

Such an approach would elevate the question raised by Koh: What is the extent of national jurisdiction over the EEZ? Is the concept of intensification of maritime zones, as discussed by Ryan, just a logical outgrowth of an ever-growing use case for the EEZ? To answer Koh’s question, the extension of nonproliferation objectives and aims to the EEZ is not an encroachment on the EEZ but rather a recognition to have “peace at sea.” Consequently, the extension of nonproliferation norms to the EEZ is necessary.Footnote ²⁵ Such uses of the sea as FNPP deployments reinforce the UNCLOS regime by promoting the rule of law, both in the context of the law of the sea and in ensuring that nonproliferation objectives and obligations are managed, maintained, and strengthened.

12.6 Conclusion

The deployment of FNPPs in the EEZ highlights the complexity of overlapping regimes and resorts back to basic questions about which law applies and who is in control of the FNPP. When trying to reconcile how FNPPs will operate under the UNCLOS regime, there is inherent divergence in the ancient traditions of maritime law and the law of the sea with the advancement of nuclear technology. With efforts toward decarbonization entering the maritime domain, the challenge will be how to prepare for coming change to ensure that the world is ready for FNPPs and can be confident that the cornerstones of nuclear nonproliferation are in place.

This chapter highlights the many ways the law of the sea, nuclear nonproliferation, and the advancement of nuclear technology converge. Although the concept of FNPPs is now more than fifty years old, their development in the 1960s and 1970s came at a time when the nonproliferation regimes were in their infancy or did not exist. Fifty years later, FNPPs are reemerging, now with more mature nuclear nonproliferation regimes and technologies, but countries are still seeking answers about how to ensure that FNPPs do not become targets of malicious actors or are not diverted by States for non-peaceful purposes. In this regard, both the law of the sea regime and safeguards and security requirements are striving to answer questions that are still unresolved. At a time when nuclear technology is expanding its application to the oceans, whether through decarbonizing shipping or supporting carbon reduction for offshore oil and gas industries, “a clear roadmap is needed” (Chambers Reference Chambers2024). The core issue for FNPPs is ensuring that wherever an FNPP is deployed, whether in the territorial sea or to the outer edges of the EEZ, nonproliferation norms are maintained. In all instances, it is unclear what that looks like, especially when overlapping or competing jurisdictional considerations from the coastal State and the flag State exist. Reconciling those claims is key to legal clarity. This chapter provides a framework for such a reconciliation in which the FNPP, when fixed in the EEZ, is treated as an installation and, for the purposes of UNCLOS and nonproliferation regimes, is the responsibility of the coastal State. On the other hand, an unfixed FNPP remains solely the responsibility of the flag State if indeed the power plant is a ship or a vessel. A floating nuclear device is also under the responsibility of the State that launched it.

FNPPs are currently in the eye of the storm, charting their course not just through their role in a decarbonized economy, and they are plying through centuries of maritime law, the law of the sea, and nuclear law instruments to find a safe and secure future. If FNPPs can ford the gap between the law of the sea and nonproliferation regimes, a new order is foreseeable that highlights the opportunities of the sea with reemerging technological possibilities.

13.2 Marine Genetic Resources

Marine biotechnology is a growing economic sector, with companies investing in new commercial products and medical treatments derived from marine genetics. MGR may be used in commercial, industrial, and manufacturing applications in healthcare, including for treating cancer and understanding the role of inflammation (Leary et al. Reference Leary, Vierros, Hamon, Arico and Monagle2009, 186–187). For example, drugs developed from marine organisms include remdesivir to fight COVID-19 and azidothymidine (AZT), the first approved treatment for HIV (Heffernan Reference Heffernan2022).

The High Seas Treaty defines MGR as “any material of marine plant, animal, microbial or other origin containing functional units of heredity of actual or potential value” (Article 1(8)). This definition does not include genetic material or digital information derived from fish or other living marine resources.

Finding and utilizing MGR requires advanced oceanographic technology and sophisticated integration of marine scientific research and biotechnology. Only the wealthiest States have the industrial base and technological capability to find and exploit MGR and produce digital data – called digital sequence information (DSI) – from them. The Treaty seeks to distribute or “share” access to and benefits of MGR and DSI throughout the world, especially inuring to the benefit of developing States. This goal has both an economic component to help accelerate the development of the Global South and an ethical component of distributive justice to atone for the perception that developed States rose to power through colonialism and the postcolonial exploitation of developing States. The effort to transform the maritime segment of biotechnology, however, skirts over the market incentive for companies to fund MGR and DSI research if they are required to give away their IPR. Furthermore, the unintended consequence of radical transparency on MGR is that marine genetic research related to military and security purposes is placed at risk. In the US, for example, ONR and DARPA fund significant amounts of marine scientific research. Much of this research is open source and unclassified, but with an eye toward military applications. Some research is classified. Under BBNJ, details on the research of these programs must be made globally transparent in a step-by-step fashion, from the initial stages to the research findings, including the sharing of DSI. These requirements imperil national security.

Section 13.3 explores the progressive emergence of the High Seas Treaty and its various key definitions, as well as the Treaty’s structure and various constructive ambiguities. The section discusses the tensions in State views that went into, and resulted in, the Treaty conceptions of MGR and DSI, which must be uploaded to a comprehensive, globally transparent online Clearing House Mechanism (ClHM).

Next, Section 13.4 underscores the remaining and critical problem of IPR by discussing the debate over the status of a treaty that contains no provision on the issue. Without robust IPR protections, the ClHM may reduce investments and risk-taking by the US marine biotechnology industry, perhaps putting jobs at risk and generating less science. The failure of the Treaty to protect IPR weakens American and allied biotechnology industries by compelling them to subsidize the rest of the world through transparency of their research, which will inevitably reduce their competitive posture and the economic prosperity of the States that fund such research. The exact requirements for complete transparency of all MGR damage national security, including homeland defensive biosecurity and biological applications that give US and allied forces an edge in advanced warfare. These shortfalls likely imperil any effort by States with advanced biotechnology sectors to ratify the Treaty. The flaws in the MGR framework mean that the US and its alliance partners are likely unable to comply with the Treaty’s requirements to share their most advanced research without undermining economic prosperity and national security.

Section 13.5 contextualizes the High Seas Treaty by considering the role of MGR research in national security. The ClHM’s laudable goal of transparency appears inconsistent with research and development of MGR for national defense, particularly in biological warfare defense and the application of bioelectrical organisms in undersea warfare. The US and its allies are pursuing this type of research to counter the People’s Republic of China. The Treaty’s provisions on exempting warships from the provisions of MGR are insufficient to cover these defensive equities. The Conference of the Parties, however, would be positioned to adopt an elastic interpretation of the warship exemption that may weaken US preparations for biological attack and biodefenses and would risk exposing military and intelligence research programs aimed at maintaining America’s competitive advantage.

13.3 The High Seas Treaty

The High Seas Treaty emerged from a twenty-year process to progressively develop the law to fill perceived gaps in the United Nations Convention on the Law of the Sea (UNCLOS).Footnote ² The Convention was innovative in creating the 200-mile exclusive economic zone (EEZ) to bring living and nonliving resources under coastal State management. This solution was designed to address the “tragedy of the commons,” in which resources are overexploited because no single State has control over them (Hardin Reference Hardin1968). Whereas the resources of the EEZ immediately fell under the sovereign rights and jurisdiction of coastal States, it was apparent that ocean governance on the high seas was underdeveloped. While UNCLOS entered into force in 1994, member States were putting the final touches on the 1995 High Seas Fish Stocks Agreement to regulate stocks that moved back and forth between the high seas and a coastal State’s EEZ, or between EEZs.Footnote ³ The 1994 Implementation Agreement on deep-seabed mining was negotiated to amend the provisions on seabed mining in UNCLOS. It was the first implementing agreement under the Convention,Footnote ⁴ the second being the High Seas Fish Stocks Agreement. Although the High Seas Fish Stocks Agreement has helped bring high-seas fisheries under more effective management, the areas beyond national jurisdiction continue to lack strong protections for resource conservation and international marine environmental law. The High Seas Treaty was designed to address the protection of high-seas biodiversity and to strengthen the weak provisions on marine technology transfer in Part XI of UNCLOS. Along the way, the management of MGR captured the process and became the flagship issue of the negotiations.

The High Seas Treaty is the third implementing agreement under UNCLOS.Footnote ⁵ Because the formal name is too long to be catchy, the effort was, for most of the past two decades, called “biodiversity beyond national jurisdiction” or “BBNJ.” More recently, some proponents have settled on the name “High Seas Treaty.” While the need to protect high-seas biodiversity is pressing and universally accepted, the provisions on the transfer of marine technology and MGR broadly divide along a Global North–South divide. The wealthy developed States are active in MGR research, and the Global South seeks access and benefits to these new riches of the sea. In a 2018 study of 38 million records of genetic sequences associated with patents, entities located in just three developed States were responsible for more than 74 percent of all the patents related to MGR: Germany (49 percent), the US (13 percent), and Japan (12 percent; Blasiak et al. Reference Blasiak, Jouffray, Wabnitz, Sundström and Österblom2018, 1, 2). Ninety-eight percent of the patents in ocean genetics were registered by entities in just ten States. Hence, the MGR provisions in the Treaty are imbued with a sense of fulfilling postcolonial debts or advancing social justice for the least developed States. The Global South extracted new commitments on MGR and technology from the developed States in exchange for two major parts that support a stronger framework to protect marine biodiversity on the high seas. First, the Treaty contains provisions to advance the use and transparency of environmental impact assessments (EIAs) for activities on the high seas. The provisions on EIAs build upon the weaker requirements already contained in UNCLOS (Articles 204–206). Second, the Treaty provides a process for creating additional marine protected areas on the high seas to provide special protection for designated areas. This process complements existing routes for designating special areas under the various annexes of the Marine Pollution ConventionFootnote ⁶ and through the adoption process at the International Maritime Organization on particularly sensitive sea areas (IMO 2006, n.d.).

The elements of the High Seas Treaty designed to protect BBNJ gained widespread support. They were of particular interest to the developed States, increasingly concerned with the relationships among ocean health, climate change, and the global biosphere. On the other hand, the developing States focused on obtaining access and benefit-sharing for Western MGR and the transfer of advanced marine technology. In fact, the provisions regulating MGR constitute the core of the new Treaty, as they are the most transformative and impose tangible costs on States that provide access and benefits to other States.

13.4 The Lingering Problem of IPRs

The High Seas Treaty’s requirements for States to reveal and share MGR encroach on existing national and international IPR by requiring radical transparency of all marine genetic science and technology conducted beyond national jurisdiction (the high seas). The Treaty requires State parties to provide details of MGR and related marine scientific research through an online internet portal, the ClHM, to be shared with the rest of the world under the theory that all humankind has an interest in, and indeed rights to, the data.

Rules to protect IPR never made it into the final text, and the problem was swept under the rug in the final push to get an agreement at any cost. The High Seas Treaty would require the emerging US marine biotechnology industry to share its IPR and trade secrets with the rest of the world. Foreign companies can leverage research and compete in global markets without funding their own programmatic research. The lack of IPR protections alone poses a potentially insurmountable obstacle to developed States becoming parties, but the Treaty has even greater strategic implications for economic and national security. The same provisions in the Treaty that require States to reveal and share MGR through the ClHM weaken the US economy and undermine national security. These provisions reflect a regime complexity that merges the Treaty with IPR treaties, making the entire architecture virtually impenetrable (Blasiak et al. Reference Blasiak, Wynberg, Grorud-Colvert, Thambisetty, Bandarra, Canario, da Silva, Duarte, Jaspars, Rogers, Sink and Wabnitz2020, 588). Literally no one knows how they will interact.

Delegates considered IPR in a draft Article 12, but the provision was cut. It was not included in the Treaty to avoid undermining the objectives of fair and equitable sharing of benefits. Insistence on a strict IPR regime could also undercut the effective implementation of traceability, which is essential to determine where on the high seas the MGR material or DSI originated. Throughout the negotiations, IPRs were regarded as “something of an outcast” (Thambisetty Reference Thambisetty2022, 3). Some States opposed including IPR in the High Seas Treaty, expressing concerns about the risks posed by the fragmentary nature of the obligations, the relationship between patents and territoriality, and the need to disclose the origin of MGR. There was a division between the developed States, which emphasized the incentive function of IPR, and the Global South, which was more interested in IPR’s allocative function as a source of development. The IPR issue was a fulcrum for success or failure, so it was deferred, presumably to be addressed by the Conference of the Parties after entry into force. As explained by Professor Siva Thambisetty:

There are existing models that adopt a flexible approach to IPR that could fulfil the mandate of the High Seas Treaty. These models may be adopted, but would require specially designed provisions to accommodate the Treaty’s unique transparency mechanisms. Developing countries generally have greater latitude under WIPO and the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),Footnote ⁹ administered by the World Trade Organization. TRIPS reflects different IPR standards across socioeconomic levels. It requires States to comply with the provisions of the Paris Convention for the Protection of Industrial PropertyFootnote ¹⁰ and the Berne Convention for the Protection of Literary and Artistic Works.Footnote ¹¹ The latter has exceptions for “moral rights,” which permit developing States under certain conditions to limit the right of reproduction (Article 6bis). However, TRIPS explicitly excludes these moral rights exceptions from its member compliance requirements (Article 9(1)).

TRIPS recognizes Special and Differential Treatment (SDT) for developing and least developed countries. These provisions grant longer transition periods, providing more time for developing States to implement TRIPS-compliant laws. For example, least developed countries have an extended deadline for pharmaceutical patents until 2034. TRIPS also allows these countries to tailor their IP laws to their level of development, needs, and capacity to enforce IPR protections. These States may adopt weaker enforcement requirements to prioritize other socioeconomic goals – such as access to education, health, and technology transfer – over strict IPR enforcement. Compulsory licenses may be issued on patented products without the consent of the patent holder, especially in cases of national emergency. Public health exceptions are among the most compelling areas, with fewer IPR restrictions for developing States, and these are likely to be a feature of MGR research. Under the 2001 Doha Declaration on the TRIPS Agreement and Public Health (WTO 2001), developing States may issue compulsory licenses to produce generic versions of patented drugs during a health crisis. The licenses permit the production of more affordable medications to address diseases such as HIV/AIDS, tuberculosis, and malaria. Developing countries are also entitled to parallel importing, which allows them to import protected goods from States where they are sold at lower prices, bypassing restrictive IP rules. Favorable IPR terms may also be adopted in the agricultural sector to provide quick access to seeds and plant varieties. TRIPS includes provisions that encourage developed countries to promote technology transfer to the least developed States (Article 66(2)).

WIPO has assisted developing States in implementing the rules and exceptions to IPR, and we may expect that the High Seas Treaty will offer the same tailored aid, primarily through the ClHM. Since MGRs have potential applications in biotechnology and pharmaceuticals for developing new drugs, enzymes, and bio-based products, the issue of IPR will persist. The key concerns revolve around how States should balance the protection of IPR with the need for fair access to and benefit-sharing from MGR under the new Treaty. The fair and equitable sharing of benefits arising from the use of MGR is the cornerstone of the Treaty. Without the effective implementation of that vision, the Treaty will not succeed. The Global South is particularly focused on this issue, and the implementation of the Treaty hinges on this central goal.

The challenge for BBNJ, however, is how developed States and corporate investors in the developed world can remain incentivized without IPR protections. Unlike TRIPS, which provides special dispensation to developing States and least developed countries, MGR and DSI data under the High Seas Treaty must be uploaded to the ClHM for all States – including competitors in the developed world – to use. The Treaty requires complete transparency in research and development of MGR, including the disclosure of where the resources are collected and how they are being commercialized. This system is designed to ensure accountability in the exploration and exploitation of resources and to drive benefit-sharing.

How may access and benefits flow to developing States while still maintaining a competitive edge against other developed States? The Treaty establishes mechanisms for sharing both monetary and nonmonetary benefits. Monetary benefits include revenues from commercial products derived from MGR, while nonmonetary benefits may include access to research, technology transfer, and capacity-building efforts. Monetary benefits seem to be the easiest way to share the bounty of MGR with the Global South, although developed States seek to grow their own organic research and development enterprise and therefore prefer nonmonetary benefits.

13.5 The Unexpected Problem of National Security

The transparency requirements for MGR and DSI in the High Seas Treaty implicate national security research on biological defense and emerging technologies that anticipate the use of biological organisms in naval operations. The Conference of the Parties may address the challenges in this area after entry into force. Adjusting and expanding the interpretation of the exemption for military activities may be required to entice States to implement the Treaty. Biosecurity concerns and the use of marine organisms in naval operations were beyond the negotiators’ imagination, but these security technologies may have profound consequences for the Treaty’s viability. Biosecurity considerations were neglected because the world was in a very different place in the early 2000s, when the BBNJ process began. By 2023, when the final text of the High Seas Treaty was adopted, strategic and economic competition made it more difficult to achieve collective action. Furthermore, the Treaty was always considered an environmental treaty. Hence, the negotiators and experts leading national delegations approached it from that epistemological perspective, rather than focusing on its ramifications for national security.

Two related changes in the international security environment require a reset of the thinking on MGR and require action by the Conference of the Parties before implementation would be widespread and effective among the most developed States. The first is that, unlike in the early 2000s, there is consensus in the US, and increasingly in the West, Japan, Australia, and elsewhere, that China poses a geostrategic threat rather than simply a market competitor. The peace and goodwill of the end of the Cold War have entirely run their course. China has replaced its “peaceful rise” campaign of the early 2000s with new challenges to the international order. The second significant change is the COVID-19 pandemic, which has heightened global sensitivity to biological security and the importance of biotechnology. Neither of these two trends was anticipated when the BBNJ negotiations began twenty years ago. Yet both trends have reset the national security chessboard, making the MGR provisions of the High Seas Treaty more challenging to implement.

The shift in US thinking to consider Beijing not just as a competitor but as an all-spectrum threat began in the last years of the Obama administration and continued through the Biden administration and have accelerated in the second Trump administration.. There is now a bipartisan belief that China is a threat to the rules-based international order. Emerging technology is “the fulcrum of U.S.-China competition” (Strobel Reference Strobel2023). For example, the 2017 US National Security Strategy states:

Lawmakers on both sides of the aisle believe that China is harvesting American technology and innovation, threatening economic and national security (Trump White House 2020). Robert C. O’Brien, Trump’s National Security Advisor, called China a predatory power and the “threat of the century” (Hepher Reference Hepher2020). The Biden administration advanced those same themes. On this issue, the position of the 2022 Biden–Harris National Security Strategy was virtually indistinguishable from that of its predecessor:

The Biden–Harris administration warned that China is the “pacing challenge” (White House 2022, 20, 22). The administration even extended the protectionism of US technology-intensive industries, surprising allies (Duehren and Mackrael Reference Duehren and Mackrael2024). The US CHIPS Act,Footnote ¹⁵ a cornerstone of Biden–Harris industrial policy, is a manifestation of this sense of the military risk associated with the technological rivalry with China (Swanson Reference Swanson2022, 15). China swiftly retaliated against the CHIPS Act by restricting the export of gallium and germanium, two minerals used in the technology industry (Areddy and Hua Reference Areddy and Hua2023). After the early 2023 incident of a Chinese spy balloon overflying the US, the Biden–Harris administration used even stronger words, warning that China was a threat to “our sovereignty” (Politi and Fedor Reference Politi and Fedor2023). Like his predecessor, Biden named China the greatest danger to American security, supply chains, and technology partnerships. The US and its allies are engaged in a struggle with authoritarian regimes to maintain the lead in advanced technologies – everything from AI to synthetic biology (Strobel Reference Strobel2023). The backbone of the provisions on MGR, and indeed the entire High Seas Treaty, is the transparency of marine biotechnology, which appears incompatible with US industrial and military security.

While the hallmark of the High Seas Treaty is the ClHM, transparency, shared access, and equitable benefits, the realities of the current world include deglobalization, the internalization of supply chains, and restrictions on sharing emerging technologies, from semiconductors to quantum key communications (White House 2023). Biotechnology is likely to follow the same course as other advanced technologies, such as semiconductor chips, diluting the goals of the ClHM. In short, the ClHM flies against the zeitgeist of the time, which is a product of great-power competition that did not fully manifest until about 2017. The pandemic only reinforced the economic and security trends. These developments cast doubt on the willingness of the most powerful States either to join the Treaty or, if they do, to implement its terms in the comprehensive manner envisioned by the Treaty and the ClHM.

Mindful of the China threat and the risk of another pandemic, the US and its allies are working to internalize research, development, and production of innovative, high-end, value-added technologies to gain greater economic autonomy and national security. While fissures in economic globalization emerged during the first Trump administration, they accelerated more recently, becoming a bipartisan feature of American politics and deepening economic protectionism. The US is not alone in these views. In Europe, these same trends toward economic security contributed to the Brexit movement and accelerated with the war in Ukraine and EU sanctions against Russia (Benson et al. Reference Benson, Steinberg and Alvarez-Aragones2024). Similarly, Japan has awakened to the threat from China. In 2021, Japan and the US singled out China as a threat to the international order in a joint statement (Siripala Reference Siripala2021). The National Security Strategy of Japan states that “China has intensified its attempts to unilaterally change the status quo by force” (NSC Japan 2022). Forming a trifecta, the US, the EU, and Japan are now energized against the technological threat of China, with other allies, especially in East Asia, also viewing China as a threat (European Council 2022; Jozuka and Essig Reference Jozuka and Essig2022; Silver et al. Reference Silver, Huang and Clancy2023).

The US signed the High Seas Treaty on September 20, 2023, stating that it may expand marine-protected areas to protect biodiversity (Blinken Reference Blinken2023). With that signature, the US acquired duties under the Vienna Convention on the Law of Treaties not to act inconsistently with the “object and purpose” of the Treaty.Footnote ¹⁶ But the core provisions of the Treaty regulate the discovery and exploitation of MGR. They are not directly related to protecting marine biodiversity, and yet they have significant implications for the US biotechnology sector and national security that are not widely appreciated.

The Treaty will require ONR and DARPA to disclose their programs and discoveries in high-seas biotechnology and share them with potential adversaries. The Department of Defense is studying how these genetic organisms and digital genomics may provide insights into biodefense for homeland security, and how they can be manipulated at the molecular and organism levels to accomplish national security missions, such as aiding the hunt for enemy submarines.Footnote ¹⁷ Marine scientific research involving genetic organisms also may be used to strengthen biological warfare defenses, not a trivial consideration in a post-COVID-19 world. Likewise, marine biotechnology has applications for a range of naval activities, from submarine detection to underwater communications.

13.6 Conclusion

From the beginning of the negotiations, the US and many developed States were somewhat circumspect about the lack of IPR protections in the High Seas Treaty, much as they had been skeptical of Part XI on deep-seabed mining in UNCLOS until the Implementation Agreement was adopted in 1994. In that case, UNCLOS received its sixtieth instrument of ratification on November 16, 1993, and was set to enter into force on November 16, 1994 (Article 308). Yet Iceland (June 1, 1985) was the only developed State to have ratified UNCLOS. Australia (October 5, 1994) and Germany (October 14, 1994) joined only after the implementing agreement had addressed the interests of the developed States. We are at a similar crossroads with the High Seas Treaty, at which developed States may be deterred from joining or fully implementing it because of weaknesses in the IPR regime and the narrowly drawn warship exemption.

The US asserted:

It is unclear under what conditions the US Senate would render advice and consent for presidential ratification of the High Seas Treaty, given the inability to accede to UNCLOS itself. If the US becomes a party to the new treaty, it will have to adopt implementing legislation applicable to US companies to enable them to participate in the access and benefit-sharing regime. It appears unlikely that the US and other developed States can paper over the conflict between the Treaty and the global framework for the protection of IPR or accept the risks to bio-naval research and development once they become manifest. As with the original Part XI, applicable to deep-seabed mining in 1982, the number of ratifications is key to the Treaty’s entry into force, but the quality is equally important. If major actors in high-seas activities – such as the US, Japan, and Germany – do not join the High Seas Treaty because of concerns over IPR and national security, its effectiveness will be severely compromised.

This volume explored some of the most essential transformative marine technologies and the law of the sea, including how ports accommodate autonomous ships, the use of autonomous ships as time charterparties, the interface between AI and seafarers, attributing “conduct” of autonomous surface ships to ship masters, the normative and doctrinal dimensions of shipping decarbonization at the IMO, protection against maritime cyber threats, satellite vessel tracking, blockchain in commercial shipping, seabed mining and underwater archeology innovations, SMART submarine communications cables, and the lacunae of IPRs in the governance of marine genetic resources in the 2023 High Seas Treaty.

Chapter 1, by Dr. Murat Sümer, maps the relationship between Maritime Autonomous Surface Ships (MASS), particularly remotely controlled ships (RCS), and port State jurisdiction (PSJ). Removing human operators on ships and in ports represents a paradigm shift in marine technology, challenging established frameworks under the law of the sea. RCS highlights how technological innovations necessitate adaptations in international maritime law to ensure navigational safety, environmental protection, and compliance with global standards.

Ports, as gateways to international trade, handle over 80 percent of global commerce and are integral to State sovereignty under the UNCLOS. UNCLOS, while silent on explicit definitions of “port” or “port State,” affirms in Article 8 complete territorial jurisdiction over internal waters, including ports. This sovereignty allows port States to regulate foreign vessels voluntarily entering their facilities, encompassing inspections, detentions, and denial of access. The International Maritime Organization (IMO) serves as the oversight body for the International Convention for the Safety of Life at Sea (SOLAS 1974), the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW, 1978). These treaties emphasize “no more favorable treatment” clauses to enforce standards universally, even on nonparty flag States.

Historically, PSJ evolved from customary law restrictions in the pre-1970s era to a robust mechanism in the 1980s, bolstered by UNCLOS and regional memoranda, such as the Paris MoU. This evolution addresses flag State inadequacies, positioning port States as supplementary enforcers. Marine technology introduces novel jurisdictional tensions for RCS, which are classified under IMO’s MASS degrees three and four, and are operated from remote operations centers (ROCs). Devoid of onboard crew, RCS rely on remote masters and AI-driven systems for navigation, but UNCLOS was drafted for manned vessels. His chapter suggests that the flexible “rules of reference” system in UNCLOS (e.g., Articles 211, 218, 219) can accommodate RCS by incorporating the IMO’s Generally Accepted International Rules and Standards (GAIRS), treating them as “ships” at the discretion of the flag State (Article 91).

Key challenges arise from ROC locations. If situated outside the flag State’s territory, effective flag State jurisdiction (FSJ) under Article 94 may be compromised due to overlapping sovereignties, potentially violating UNCLOS obligations for control over vessels. The chapter proposes extending the jurisdiction of the International Tribunal for the Law of the Sea (ITLOS) from viewing the ship as a unit (e.g., M/V Saiga (No. 2) and M/V Virginia G) to include ROCs as integral components, akin to a ship. This change could mitigate jurisdictional gaps, supplemented by enhanced PSJ through port State control (PSC) inspections of ROCs, especially if digitized certificates and remote audits were adopted through the IMO’s Facilitation Committee guidelines.

Access to ports for RCS is not a right but a privilege (UNCLOS Article 25(2)). States may impose construction, design, equipment, and manning (CDEM) standards in ports, provided they are nondiscriminatory and publicly announced (UNCLOS, Article 211(3)). Potential extraterritorial effects may conflict with WTO principles, such as GATT’s freedom of transit, thereby risking the establishment of trade barriers. To incentivize skeptical port States, the chapter advocates compulsory pilotage for RCS in port approaches, leveraging local expertise to address high-traffic hazards. While IMO avoids comprehensive pilotage regulation due to regional variances, the draft MASS Code could mandate it for safety, aligning with SOLAS and environmental protections in UNCLOS (Article 211(4)).

PSC emerges as a critical compliance tool, evolving from inspections focused on construction, design, equipping, and manning to broader scopes that include human elements and cybersecurity. For RCS, PSC could extend to ROC verifications, ensuring alignment with ISM Code equivalents, such as the proposed Remote Operations Management (ROM) systems.

RCS integration hinges on harmonizing marine technology with the law of the sea. While flag States retain primary responsibility, the expanding role of port States serves as a safety net against jurisdictional fragmentation. Achieving consensus at IMO is imperative to prevent fragmentation and foster safe, sustainable, and autonomous shipping without hampering global trade. The universal application of a MASS Code can guide IMO decisions. This framework not only upholds the evolutionary spirit of UNCLOS but also positions port States as pivotal guardians in the era of remote maritime operations.

In Chapter 2, Ceren Cerit Dindar examines how time charterparty agreements interact with MASS. Charterparty contracts license the temporary use of vessels. The applicability of time charterparties to autonomous ships necessitates adaptations in standard forms, such as the New York Produce Exchange (NYPE) 2015, to align with advancements in AI, remote operations, and dynamic autonomy levels.

Fully autonomous ships operate without onboard crews, relying on ROCs for monitoring, control, and intervention. Marine technology enables seamless transitions between remote and fully autonomous modes, as seen in vessels. One of them is Yara Birkeland, an autonomous 120-TEU container ship that carries cargo between ports at Herøya and Brevik in Norway. The development of the MASS Code aims to address navigational safety, but private contractual law, governed predominantly by English principles, must evolve concurrently.

Time charterparties, unlike bareboat charters, allocate possession and operational control to shipowners while granting charterers commercial employment rights. For MASS, ROCs, and vessel personnel, arrangements should be made by shipowners or third-party managers (e.g., through BIMCO’s AUTOSHIPMAN form), preserving the charter’s essence. Key obligations necessitate revisions: Shipowners must ensure seaworthiness, encompassing ROC infrastructure, cybersecurity, and AI systems, which extend traditional duties under NYPE Clause 2. Under the NYPE form (Clause 2), items such as port charges and usual expenses shall be for the charterers’ account. To mitigate breaches, descriptive clauses (preamble and Annex A) should incorporate autonomy capabilities, such as automated cargo-handling.

Charterers’ obligations, including compliance with safe port warranties (NYPE Clause 6), necessitate a redefinition of “safety” to encompass digital resilience against cyber threats, compatible automated berthing infrastructure, and real-time data integration. Ports deemed unsafe due to persistent technological deficiencies (e.g., inadequate V2X communication) could trigger liability. Off-hire provisions require expansion to cover ROC failures, software glitches, or connectivity issues, potentially with de minimis thresholds to avoid disputes over minor disruptions.

Ultimately, while freedom of contract allows amendments, standardized updates to NYPE forms are essential to prevent fragmentation. This evolution harmonizes the benefits of marine technology while emphasizing uniform standards in the law of the sea. MASS integration is ensured without compromising global trade or liability regimes. As IMO progresses in developing the MASS Code, charterparty law must adapt to foster innovation while upholding navigational freedoms under UNCLOS.

In Chapter 3, Khanssa Lagdami explored AI at sea. The integration of AI into marine technology is reshaping the maritime industry, enhancing operational efficiency, safety, and sustainability while posing significant challenges to the law of the sea and labor regulations. Her chapter examines AI applications in shipping, such as autonomous navigation, predictive maintenance, voyage optimization, and cybersecurity. The application of AI in these roles has implications for seafarers. Adaptive legal frameworks will have to be crafted under UNCLOS, the Maritime Labour Convention (MLC, 2006), and STCW, 1978.

Marine technology advancements, including MASS, leverage AI for real-time data processing from sensors, big data analytics, and machine learning to enable collision avoidance, route optimization, and energy management. Projects like Yara Birkeland exemplify degree-three autonomy (remotely controlled without an onboard crew), which reduces human error and fuel consumption. However, these innovations disrupt traditional seafaring roles, potentially displacing low-skilled jobs while creating demand for upskilled positions in ROCs. Studies suggest AI will redefine rather than eliminate seafarer roles, necessitating competencies in data analysis, AI oversight, and cybersecurity.

Flag State responsibility (UNCLOS, Article 94) requires reassessment for AI-driven vessels, where liability for accidents complicates attribution among human operators, software developers, and flag States. For example, sensor degradation or algorithmic failures may lead to collisions. The IMO addresses this dilemma through its E-Navigation Strategy (MSC.1/Circ.1595) and the ongoing development of the MASS Code. This framework aims to harmonize AI integration with safety and environmental protections, potentially mandating human oversight at high autonomy levels to align with navigational freedoms and pollution-prevention duties (UNCLOS, Articles 87 and 192–194).

Labor law implications are profound. AI surveillance via digital monitoring raises concerns over privacy, technostress, and occupational safety and health. The MLC’s provisions on working hours, rest, and repatriation (Regulations 2.3–2.5) may not adequately cover shore-based remote operators, prompting calls for amendments to prevent excessive monitoring and to ensure the right to disconnect. STCW revisions are essential to incorporate AI-related training, focusing on competencies for MASS degrees one to four. The EU AI Act (Regulation (EU) 2024/1689), which entered into force in August 2024 and will be fully applicable by August 2026, classifies maritime AI as high risk. This designation mandates transparency, data governance, and human oversight. This aligns with the MASS Code, which requires EU-linked vessels to comply with bias mitigation and cybersecurity protocols, potentially influencing global standards through collaboration with IMO member States.

Challenges include cybersecurity vulnerabilities, as evidenced by breaches such as the NotPetya attack on Maersk in 2017, and data leakage risks, underscoring the need to align with the General Data Protection Regulation (GDPR) to protect seafarers’ personal data. Opportunities lie in the ethical deployment of AI, fostering human–AI collaboration to enhance safety without exacerbating isolation or mental health issues aboard ships.

While AI propels marine technology toward decarbonization and efficiency, aligning with the sustainable use mandate in UNCLOS, it demands evolutionary reforms in maritime labor laws. International cooperation, including tripartite ILO–IMO dialogues, is vital to safeguard seafarers, prevent fragmentation, and ensure an equitable technological transition, striking a balance between innovation and human-centric principles.

Maral Javidbakht considered the attribution of conduct for MASS in Chapter 4. The emergence of MASS represents a transformative leap in marine technology, enabling vessels to operate with varying degrees of human independence through sensors, AI algorithms, and ROCs. Her chapter examines the attribution of MASS shipmasters’ conduct to flag States under the law of the sea, emphasizing that technological advancements do not erode traditional accountability.

Marine technology allows shipmasters to retain overall command remotely, even in high-autonomy scenarios (IMO MASS degrees 3–4). In such cases, navigational and operational duties may be conducted via ROCs. However, international law rejects masterless navigation. Shipmasters must remain human, exercising overriding authority for safety (e.g., SOLAS, UNCLOS Article 98). UNCLOS treats ships as units (ITLOS jurisprudence in M/V Saiga (No. 2)), linking masters to flag States jurisdictionally, irrespective of location (Article 94). MASS qualify as “ships” under UNCLOS, subject to flag State obligations for effective control and due diligence in preventing wrongful acts.

Attribution is reflected in the rules of the Articles on Responsibility of States for Internationally Wrongful Acts. For government-operated MASS, masters are de jure organs (Article 4), and their conduct is directly attributable to the flag State. For privately operated vessels, attribution arises if the master exercises governmental functions (Article 5) or acts under flag State instructions/effective control (Article 8). Remote locations pose enforcement challenges – for example, extraterritorial ROCs – but do not negate attributability, as jurisdiction stems from the ship’s flag, not its physical presence. Flag States bear due-diligence duties to ensure that masters comply (UNCLOS Articles 94, 217), with breaches attributable to State omission if preventive measures are not taken. Ultimately, MASS integration requires harmonized marine technology in accordance with the principles of the law of the sea. While AI reduces the need for onboard human roles, human masters safeguard predictability and safety. Flag States must enhance due diligence – for example, cybersecurity for ROCs – to avert responsibility gaps, thereby fostering innovation without compromising navigational freedoms or environmental protections under UNCLOS.

In Chapter 5, Sindhura Polepalli adds normative concepts of justice and equity to the discussion of shipping decarbonization. The imperative for decarbonization in international shipping is closely tied to advancements in marine technology and evolving interpretations of the law of the sea. Her chapter critiques the sector’s transition toward net-zero greenhouse gas (GHG) emissions by mid-century, emphasizing procedural and legal disparities hindering a “just and equitable transition” (JET).

Shipping handles over 80 percent of global trade but relies on fossil fuels, contributing 3 percent of anthropogenic GHG emissions. Maritime emissions are projected to grow by 90–130 percent of these figures by 2050, compared to 2008 levels. Marine technology innovations – such as zero-emission vessels (ZEVs), alternative fuels (e.g., ammonia, hydrogen), energy-efficient designs, and digital optimization tools – offer pathways to reduce carbon intensity. However, adoption of these “green” technologies requires equitable global frameworks to avoid exacerbating vulnerabilities in developing States.

UNCLOS frames anthropogenic GHGs as marine pollution (Article 194(1)), obliging States to prevent, reduce, and control emissions with due diligence and a precautionary approach. The International Tribunal for the Law of the Sea’s (ITLOS) Advisory Opinion of May 21, 2024, reinforces this duty, linking UNCLOS obligations to the Paris Agreement’s 1.5°C goal and invoking the concept of common but differentiated responsibilities and respective capabilities (CBDR-RC). ITLOS mandates assistance from developed States to developing States – those with lesser capabilities (Articles 202–203). This mandate ensures continuous support until parity is achieved. This human-centric lens addresses the risks posed by climate change, including sea level rise that impacts Small Island Developing States (SIDS) and Least Developed Countries (LDCs).

As the competent international organization, the IMO stewards sector-specific measures via the Marine Environment Protection Committee (MEPC). The 2023 Revised IMO Strategy on Reduction of GHG Emissions from Ships targets a 20–30 percent reduction in vessel source emissions by 2030, a 70–80 percent reduction by 2040, and net-zero emissions by 2050. Short-term measures under MARPOL Annex VI, such as the Energy Efficiency Existing Ship Index (EEXI) and Carbon Intensity Indicator (CII), leverage marine technology to achieve a 40 percent reduction in carbon intensity from 2008 baselines. However, mid-term proposals, including a GHG Fuel Standard (GFS), universal levies, and emissions trading systems, reveal gaps. The Comprehensive Impact Assessment (CIA) highlights the disproportionate burdens on developing fleets, yet it lacks transparency and broad stakeholder input.

To address these challenges, SIDS advocate revenue recycling for adaptation. Developed States push levies under the polluter-pays principle. These are often flag-neutral but ignore the nuances of CBDR-RC. Hybrid mechanisms, such as feebates that incentivize ZEVs, integrate marine technology (e.g., onboard carbon capture) but risk trade distortions without equitable revenue distribution. As of August 2025, the IMO approved the Net-Zero Framework in April (MEPC 83), which combines GFS with economic incentives, was slated for formal adoption in October 2025, and is expected to enter into force in 2027. This advances UNCLOS obligations, but critiques persist, including from the US Federal Maritime Commission on economic impacts.

The chapter urges reforms – including revising IMO member State groupings, explicitly embedding the polluter-pays principle, and elevating JET to the Legal Committee – to harmonize marine technology deployment with law of the sea principles. Without addressing CBDR-RC and assistance obligations, decarbonization risks perpetuating inequities and contravening UNCLOS’s mandate for sustainable ocean governance. Ultimately, JET demands leadership from developed States, public–private partnerships for technology transfer, and inclusive coalitions to foster resilient, low-carbon shipping ecosystems.

Many of the technologies for shipping and autonomous vessels require reliable communications between the ship and shore, between the ship and other instruments or devices in the water, and within the ship. Raul “Pete” Pedrozo explores the vulnerability of these communications in Chapter 6. Maritime cyber threats, particularly the jamming and spoofing of Global Navigation Satellite Systems (GNSS), pose escalating risks to navigation reliant on marine technology, undermining safety and efficiency in international shipping. This chapter examines vulnerabilities in systems such as GPS, GLONASS, BeiDou, and Galileo, which provide critical Position, Navigation, and Timing (PNT) data. Low-power GNSS signals are susceptible to intentional interference, which can degrade accuracy, integrity, continuity, and availability. Malign actors – primarily China, Iran, Russia, and North Korea – employ electronic warfare to disrupt commercial vessels, with incidents surging: over 5,800 vessels affected in Q2 2025 alone, including persistent Baltic jamming attributed to Russia, Persian Gulf AIS spoofing since mid-2025, and disruptions during the Israel–Iran conflict impacting nearly 1,000 ships daily. Such attacks, often near oil terminals or conflict zones, compromise safety under UNCLOS, which mandates pollution prevention and navigational freedoms (Articles 192–194).

UNCLOS implicitly requires States to ensure navigational safety (SOLAS integration), while ITU Radio Regulations prohibit harmful interference in navigation. Jamming and spoofing are violations of these duties. The IMO addresses these issues through the Maritime Safety Committee, which has established guidelines (MSC.1/Circ.1526) and adopted Resolution A.1045(27), which urges resilient PNT. In March 2025, IMO, ICAO, and ITU issued a joint statement expressing “grave concern” over rising incidents, calling for safeguards to protect radionavigation services. US measures, including DHS advisories and NCAGS reporting, emphasize the use of real-time alerts and multilayered defenses.

Marine technology mitigations include enhanced receivers, encrypted Satellite Time and Location (STL) signals offering 30–50 m accuracy, eLoran backups, and anti-jamming antennas such as the Veripos GAJT-710MS. Emerging innovations, such as laser-based positioning (e.g., CyScan GeoLock) and quantum navigation, may bolster resilience. In 2025, the US Space Force’s X-37B mission tested quantum sensors for GPS-free PNT and laser communications, while Q-CTRL’s gravimetric trials and French/Chinese laser systems may advance secure, high-bandwidth alternatives. Quantum clocks promise orders-of-magnitude precision.

Ultimately, resilient PNT architectures must integrate defense-in-depth and cybersecurity to uphold the rules reflected in UNCLOS. As cyber threats proliferate, international cooperation must evolve to prevent navigational disruptions and ensure safe, spoof-proof maritime operations amid geopolitical tensions.

There is a fusion of space and ocean technologies. In Chapter 7, Richard Kilpatrick discusses space-based vessel tracking and its impact on maritime operations. Vessel-tracking innovations represent a convergence of marine technology advancements and evolving obligations under the law of the sea, enhancing maritime domain awareness while introducing new vulnerabilities. His chapter traces the evolution from early twentieth-century radio communications, which were codified in the 1914 SOLAS Convention following the Titanic disaster, to the Global Maritime Distress and Safety System (GMDSS) in 1988. Contemporary tools, such as the Automatic Identification System (AIS) and Long-Range Identification and Tracking (LRIT), now rely on space-based satellites. These SOLAS-mandated systems (1974, as amended) integrate satellite infrastructure for real-time PNT, aligning with navigational safety imperatives (UNCLOS, Articles 94, 98) and IMO guidelines (MSC.1/Circ.1307).

Contemporary marine technology leverages AI, machine learning, and satellite imagery to process AIS data, which is cross-referenced with radar and drone data. This combination enables better detection of “dark” vessels evading tracking through spoofing or deactivation. As of August 2025, innovations include blockchain for secure cargo tracking, AI-driven analytics for sustainability (e.g., wind-powered vessels), and autonomous ship operations, as highlighted in the MASS Code developments. These tools bolster enforcement against IUU fishing, sanctions evasion, and maritime piracy and terrorism, and support pollution prevention (UNCLOS, Article 194) and flag State duties.

However, enhanced transparency risks misuse. Houthi militants, for example, have exploited AIS for targeting and sinking vessels and hijacking others. This action prompted US advisories (MARAD, March 2025) recommending AIS deactivation in high-risk areas, which has to be reconciled with SOLAS mandates for continuous broadcasting, except in the event of security threats. IMO guidelines and flag State rules must strike a balance between transparency and protection, potentially by using encrypted signals or selective data sharing. Evolving threats require standards aligned with UNCLOS and harmonized with IMO AIS guidelines. As AI and quantum navigation advance, vessel tracking promises safer oceans but necessitates ethical safeguards against exploitation, ensuring equitable maritime governance.

In Chapter 8, Krisztina Tilinger unpacks how blockchain interacts with the law of the sea. Blockchain technology (BCT), as an innovative marine technology, intersects with the law of the sea to advance sustainable ocean governance, aligning with UN SDG 14 and UNCLOS. The oceans absorb 23 percent of anthropogenic CO₂ emissions and are vital for regulating the climate and supporting biodiversity, yet face threats from pollution, overfishing, and climate change. UNCLOS mandates the conservation of marine living resources (Articles 61–62), environmental protection (Part XII), and the preservation of biodiversity (Article 194), emphasizing community interests over State-centric exploitation.

BCT’s decentralized, distributed, and immutable ledger ensures data authenticity, reducing fraud, bureaucracy, and costs while enhancing trust in public administration. UN recommendations advocate for BCT integration in achieving the SDGs, with applications in commodity tracking, refugee aid, and peer-to-peer financing. In ocean governance, BCT enables transparent total allowable catch (TAC) allocation, real-time pollution monitoring, MARPOL-compliant waste management tracking, and marine protected area (MPA) surveillance via smart contracts and token incentives for sustainable practices.

Challenges to broader integration of BCT include high energy consumption, scalability issues, legal recognition as evidence, and data privacy under GDPR equivalents. The EU’s 2023 European Blockchain Regulatory Sandbox (EBRS) addresses these through regulatory dialogues, with the 2025 EU Blockchain Ecosystem Report highlighting growth in finance, government, and supply chains, led by Estonia and Lithuania. As of August 2025, advancements include the UN Ocean Conference’s “Digital Oceans” agenda and side events, such as Sea2See’s blockchain-based seafood transparency, alongside Ocean Protocol’s mid-year updates that enhance data monetization for marine research. BCT harmonizes marine technology with UNCLOS, promoting equitable resource use without the need for new treaties, as national laws and best practices are sufficient. By automating compliance and incentivizing conservation, BCT accelerates SDG 14, striking a balance between innovation and environmental stewardship to achieve resilient oceans.

Chapter 10 by Digvijay Rewatkar examines seabed-mining technology and its material impact on implementing the precautionary approach. Seabed-mining technology intersects critically with the law of the sea, balancing resource extraction in Part XI with environmental safeguards in Part XII of UNCLOS. His chapter examines how States may use technology to access minerals in the Area beyond national jurisdiction. Seabed minerals include cobalt, nickel, and rare earth elements. Projections indicate that demand will surge by 2050. Risks associated with seabed mining include sediment plumes, noise pollution, and loss of biodiversity and habitat. Marine technology may help mitigate these risks.

The UNCLOS negotiations from 1973 to 1982 reflected a North–South divide, with developing States advocating technology transfer under the common heritage principle (UNCLOS, Article 136) amid technological uncertainties. The precautionary approach, initially nascent but formalized in Principle 15 of the Rio Declaration (1992), mandates risk aversion when scientific uncertainty persists (UNCLOS Articles 145, 194). The International Seabed Authority (ISA), established under UNCLOS Part XI, operationalizes this normative approach in its Draft Exploitation Regulations, emphasizing best available technology (BAT) and environmental impact assessments (EIAs) to minimize harm.

Marine technology advancements include collector systems for nodules (e.g., suspended noncontact robotics by Beijing Pioneer and BGR, reducing seafloor traction), cutters for sulfides/crusts (e.g., Patania II), and riser-lift systems for ore transport. Impacts on the marine environment appear to vary. Benthic disturbances destroy habitats, mid-water plumes affect nutrient cycles and respiration, and surface emissions mimic shipping pollution. Studies post-2024 collector tests (e.g., NORI-D) show short-term plume dilution, but knowledge gaps in mid-water ecosystems persist.

The forthcoming Mining Code incorporates precautionary measures, such as adaptive management and regional environmental plans, for the Clarion-Clipperton Zone. Meanwhile, thirty-four States, including France and Chile, have called for a moratorium on commercial exploitation. Challenges include the dynamic evolution of BAT, uncertainty about how to implement equitable tech transfer (UNCLOS Article 144), and how to integrate the BBNJ treaty into planning and operations. Seabed-mining technology must align with the evolutionary framework of UNCLOS, prioritizing precaution to reconcile mineral needs with the integrity of ecosystems. Scalable, experimental approaches could optimize trade-offs, fostering sustainable deep-sea governance amidst climate imperatives.

In Chapter 10, Youri van Logchem analyzes the relationship between Sensor Monitoring and Reliable Telecommunications (SMART) submarine communications cables and the legal regime governing marine scientific research. SMART cables exemplify innovative marine technology, integrating oceanographic sensors into submarine fiber-optic cables to enhance data collection on climate change, aquatic environments, and disaster warnings. His chapter uncovers the dual functionality of SMART cables, which transmit international communications while gathering environmental data. This dual purpose may create tension between the cable regime and the rules for marine scientific research (MSR) in UNCLOS.

Submarine cables carry approximately 99 percent of the world’s global data traffic. SMART systems retrofit existing cables or design new ones with sensors (e.g., accelerometers, pressure gauges) for real-time monitoring of seismic activity, tsunamis, and ocean warming, thereby addressing deep-ocean knowledge gaps that are unattainable via buoys or satellites. Under UNCLOS, cable laying is a high-seas freedom (Article 87), with coastal States exercising limited jurisdiction in the exclusive economic zone (EEZ) and on the continental shelf (Articles 58, 79). However, SMART cable data collection may activate the MSR regime in Part XIII, requiring coastal consent in the EEZ and on the continental shelf (Article 246). Transit cables (nonlanding) may evade full coastal State jurisdiction, but sensor integration may classify their activity as MSR. Coastal State sovereignty applies in territorial seas (Article 2). Security concerns abound. Following the attack on the Nord Stream pipeline and the associated cable damage, concern has grown that SMART cable data could be at risk. Routing on the high seas or through stable, consenting States may reduce the conflicts among the different legal regimes.

In Chapter 11, Natalia Perez examines advances in underwater archaeology and their implications for the regime under UNCLOS. UNCLOS addresses archaeological objects at sea, including in the contiguous zone (Article 33), the Area (Article 149), and general duties of States (Article 303). UNESCO estimates that there are 3 million undiscovered wrecks, including many warships, in foreign waters, prompting debates over flag State versus coastal State rights. Technical and information breakthroughs in underwater archaeology are transforming the discovery, study, and preservation of shipwrecks. As more finds are discovered, questions have arisen about ownership, sovereign immunity, and cultural heritage. Technologies like remotely operated vehicles (ROVs), autonomous underwater vehicles (AUVs), unmanned surface vehicles (USVs), and sonar-enabled deep-sea exploration beyond diver limits (e.g., 90 m) facilitate noninvasive imaging and eDNA analysis for historical insights. The 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage (UCH) prohibits commercial exploitation, designates wrecks as gravesites, and mandates in situ preservation.

Marine technology democratizes access but risks the looting of sunken wrecks. The UNCLOS and UNESCO frameworks should evolve to promote equitable governance, prioritizing cooperation and technology transfer (UNCLOS Article 202). This approach strikes a balance between heritage preservation and innovation, thereby preventing commercial overreach in contested areas.

Chapter 12 by Marc Fialkoff turns toward the legal regime of Floating Nuclear Power Plants (FNPPs) and the law of the sea. FNPPs embody cutting-edge marine technology, enabling decarbonized energy for offshore platforms subject to complex, intersecting regimes under the law of the sea and nuclear nonproliferation. His chapter examines jurisdictional ambiguities in EEZ deployments, reconciling the sui generis nature of the EEZ (Article 55) with IAEA safeguards and the Amendment to the Convention on the Physical Protection of Nuclear Material (ACPPNM).

In the EEZ, UNCLOS balances coastal rights (Article 56) and high-seas freedoms (Article 58), classifying FNPPs as ships, installations, or artificial islands, depending on the circumstances. Fixed FNPPs may qualify as installations (Article 60), thereby extending coastal jurisdiction for nonproliferation purposes, including Comprehensive Safeguards Agreements (CSAs) under NPT Article III and nuclear security, as per ACPPNM Principle 2A(3). Disputes continue to surround FNPP, especially their use within foreign EEZs. Some proposals advocate for coastal responsibility for fixed FNPPs, which attempts to align UNCLOS evolution with the peaceful use (Article IV) provisions of the NPT. Harmonizing regimes ensures nonproliferation without impeding maritime innovation, fostering sustainable ocean energy amid climate imperatives.

In Chapter 13, James Kraska questions whether the regime for marine genetic resources (MGR) in the 2023 BBNJ agreement is sufficient to protect legal rights to intellectual property or naval technology. MGR encompasses genetic material from marine organisms with potential market or naval value. For example, marine genetic resources have been used in biotechnology to develop pharmaceuticals such as remdesivir. These organic materials require advanced marine technology for collection. This technology includes deep-sea submersibles, genomic sequencing, and AI-driven analysis, which is predominantly held by developed States. These new technologies are not unrelated to military risk at sea.

Under UNCLOS, high-seas freedoms (Article 87) evolve through BBNJ to balance exploitation with conservation (Articles 192–194). This has imposed notification, assessment, and equitable sharing obligations without protecting IPRs. This transparency risks exposing proprietary data, thereby deterring innovation in marine technology sectors, such as synthetic biology. National security concerns are also present. DARPA and the Office of Naval Research (ONR) fund civilian vessels for bio-naval research to detect underwater threats. Related research would be posted on the ClHM. Although the BBNJ Agreement exempts warships, this may nevertheless conflict with UNCLOS’s military exemptions under Article 298(1)(b).

To enhance implementation, the Conference of the Parties (COP) should prioritize monetary/in-kind benefits (e.g., capacity-building funds) over full disclosure of research on the ClHM. This approach would preserve IPR to incentivize participation without compromising distributive justice. Furthermore, broadening the warship exemptions to include defense-funded research aligns with UNCLOS’s structure, which favors sovereign immunity.

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The chapters in this volume illuminate the dynamic interplay between advances in marine technology and the law of the sea, navigating challenges ranging from autonomous shipping to deep-sea resource governance. Collectively, these chapters highlight the potential of marine technology to revolutionize shipping, exploration, and sustainability while also exposing legal fissures in jurisdiction, equity, and security. UNCLOS’s evolutionary spirit must adapt to foster innovation without exacerbating divides, ensuring that benefits like enhanced safety and biodiversity protection accrue globally.

Future marine technologies warrant exploration in quantum navigation for spoof-proof PNT, AI-driven predictive maintenance for zero-emission vessels, hydrogen/ammonia fuels for decarbonized propulsion, deep-sea robotics with bio-inspired designs for minimally invasive mining, and integrated ocean observatories using blockchain-secured IoT for real-time biodiversity monitoring. These could align with the IMO’s MASS Code and BBNJ, promoting equitable and secure ocean stewardship.

Marine technology cannot be categorized into a single basket. It is more accurate to refer to “marine technologies,” each with its own ecosystem of hardware and software and distinct yet overlapping legal regimes. Furthermore, the international maritime law applicable to each technology must be considered within the context of its use. Commercial uses, government uses, and marine scientific research purposes are each discrete activities with specific legal regimes. This means that future lines of inquiry focused on the intersection of marine technology and the law of the sea might fragment into separate epistemological communities. On the other hand, there are benefits to selecting the most critical or transformative technologies and testing their application to legal regimes that evolve more slowly. This cross-pollination yields insights across subfields of ocean law and policy.