1. Introduction to the ICLQ Forum

This publication marks the launch of a new initiative, the International and Comparative Law Quarterly (ICLQ) Forum, a series of special issues of the ICLQ which focus on thematic topics falling within the scope of the journal. Each Forum will focus on a single subject area, exploring emerging issues and new perspectives and drawing on a broad range of expertise, with the aims of increasing knowledge, stimulating thought and encouraging new avenues of research, supported by rigorous academic scrutiny and the ICLQ editorial process.

The ICLQ was formed in 1952 by the merger of the Journal of Comparative Legislation and the International Law Quarterly, with a view to both addressing questions of contemporary importance and fostering the movement of knowledge across the boundaries between complementary fields of legal study.Footnote ¹ Since then, the ICLQ has played a pivotal role in sharing and developing research across various fields of law. The ICLQ Forum continues this tradition by providing a new space for exchanging and debating ideas in what is the most major innovation in the format of the ICLQ since its inception. The Forum complements but does not replace the quarterly issues, which will continue to be published in their current, highly regarded format. By inaugurating the Forum, the Editorial Board is keen to foster the drawing together of reflections and analysis on major thematic areas of law which are currently addressed by the ICLQ in ways which offer new opportunities for detailed, comparative and cross-disciplinary engagement.

2. Inaugural theme: the law of the sea

This inaugural ICLQ Forum issue is entitled ‘Law of the Sea: Present Challenges and Future Directions’. Co-edited by former ICLQ General Editor Professor Sir Malcolm Evans, ICLQ Editorial Board Member Professor Richard Barnes, invited experts Dr Rozemarijn Roland Holst, and Dr Constantinos Yiallourides and Dr Jack Kenny of BIICL, it explores and reflects upon both current developments in the law of the sea and scans emerging horizons.

Given the breadth of subject-matter falling within the scope of the ICLQ, the Forum could have focused upon many topics, including human rights, comparative commercial law, conflicts of law, humanitarian law, European Union law, environmental law, investment law, or much else besides. However, the choice of the law of the sea was motivated by three reasons. First, since its very first issue, the law of the sea has been a mainstay of the ICLQ, and the journal has made a significant contribution to the development of the international law of the sea. Since 1952, the ICLQ has published over 130 full-length and short articles directly addressing the subject, alongside numerous current legal development surveys and case analyses touching upon it more indirectly. Whilst like the seas themselves, there has been ebb and flow across the years with high and low points, overall there has been an impressive mean of articles published which have reflected the changing interests in the law of the sea itself, and the density of the law bearing upon it.

Early volumes of the ICLQ appeared at the time when the International Law Commission was developing its drafts that would later feed into the four 1958 Geneva Conventions that resulted from the UNCLOS I Conference, and this was well reported and commented upon in the pages of the journal. It is, perhaps, difficult today to recall the importance of academic journals as a means of keeping their readers abreast of legal developments in the pre-electronic and pre-internet era. Indeed, the very first issue of the ICLQ included a note by Douglas Johnson on Icelandic fishery limits, expressing the ultimately frustrated expectation that the UK and Iceland would settle their differences through negotiation: predicting future directions in law and in the settlement of legal disputes has always been a risky business, and particularly as the growth of fora for dispute settlement has ushered in a somewhat more litigious era.Footnote ²

The journal’s first full article on the law of the sea was by the Australian scholar, Louis Goldie, seeking to justify Australian claims in respect of sedentary fisheries on its continental shelf in light of threatened litigation by Japan.Footnote ³ This prefigured what became a recurrent theme in the years that followed,Footnote ⁴ in which there were an increasing number of articles assessing claims to expanded authority over ocean space,Footnote ⁵ or delimiting the extent of such claims. As contributions to this Forum highlight, these still remain important challenges which show no sign of diminishing.

Needless to say, landmark developments in the law of the sea have also featured prominently, including a series of three articles by David Anderson chronicling issues relating to the entry into force of the 1982 United Nations Convention on the Law of the Sea (UNCLOS, Convention).Footnote ⁶ More recently, attention has turned to the third UNCLOS implementing agreement, the Agreement on Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement), which has been discussed by Efthymios Papastavridis in the ICLQFootnote ⁷ and is also the subject of comment in the present Forum, and which at the time of writing is on the cusp of entry into force. The careful observer may also note that, across the decades, there has been stubborn resistance of some issues regarding better governance, such as delinquent flag State control,Footnote ⁸ or effective fisheries management; issues which seem as intractable today as they have always been. In recent years, attention has rightly become focused on the lack of human rights protections at sea, but this too is not without precedent, as Sir Arthur Watts showed in his 1958 article on the protection of seafarers.Footnote ⁹

Articles published in the ICLQ in more recent years have become less focused on charting developments in the law of the sea and more engaged with steering our understanding on how it should develop. This has, in part, been driven by developments in technology, such as the emergence of autonomous ships,Footnote ¹⁰ or in scientific understandings of new forms of harm to the marine environment.Footnote ¹¹ The need for broader perspectives to be brought to bear on the subject, which has at times appeared rather ‘insulated’ from more general developments in international law, has become increasingly important as different fields of law intersect, as evidenced in Douglas Guilfoyle’s contributions to debates on piracy and human rightsFootnote ¹² or Richard Barnes’ exploration of refugee protection at sea.Footnote ¹³

These trends in scholarship touch upon the second reason for selecting the law of the sea as the topic for this inaugural ICLQ Forum: it enables reflection upon the significant contribution that the law of the sea has made and continues to make to our wider understanding of international law as a system. To give some examples from the past, law of the sea practice and jurisprudence infused Campbell McLachlan’s highly influential article on treaty interpretation and systemic integration.Footnote ¹⁴ Alan Boyle engaged with similar concerns in his two articles concerning the fragmentation of dispute settlement (bequeathing to the world the concept of dispute salami-slicing) and developing the law of the sea.Footnote ¹⁵ Catherine Redgwell and Antonios Tzanakopoulos have explored the interplay of treaty and custom in the regime for offshore archipelagos.Footnote ¹⁶ Adopting an even wider perspective, Reece Lewis has examined how UNCLOS can continue to best fulfil its so-called ‘constitutional’ function.Footnote ¹⁷ It is this tradition that the Forum seeks to further build upon.

A final reason for focusing on the law of the sea is one of timing. In recent years, there has been a resurgence in law of the sea scholarship. Indeed, the UK House of Lords has undertaken an inquiry into the state of the law of the sea and its capacity to meet contemporary challenges.Footnote ¹⁸ In part, this resurgence has been driven by contemporary developments: the negotiation, adoption and entry into force of the BBNJ Agreement, the emphasis on ‘Blue Growth’ and the intensified use of the oceans as a site of potential economic prosperity, and the ocean as a site where law can play a role in addressing planetary crises like climate change. As the Advisory Opinions on climate change delivered by the International Tribunal for the Law of the Sea (ITLOS) in 2024Footnote ¹⁹ and the International Court of Justice (ICJ) in 2025Footnote ²⁰ demonstrate, understanding the systemic connections between branches of international law is crucial not only to the functioning of international law, but also to its ability to address existential global problems. In part, this also reflects increasing concern with how the law of the sea is associated with past injustice and inequity, and with a need to revisit and learn from this. Alex Green and Margaretha Wewerinke-Singh’s recent article on the continuity of States in light of sea-level rise is a case in point.Footnote ²¹ The law of the sea provides an ideal opportunity to look to the future with a critical eye on the past. At the same time, the seas are becoming flashpoints for other forces at work, which threaten to unsettle elements of the established international legal order, such as the challenge of migration at sea, the (in)security of cables and pipelines, changing geopolitical and strategic tensions, militarisation and surveillance. As ever, as times change, so do our interests in the ocean spaces, their uses and their legal regulation.

Finally, it should also be recalled that the ICLQ is the journal of the British Institute of International and Comparative Law (BIICL). BIICL too has a longstanding record of leadership in law of the sea scholarship. Among its most influential contributions in more recent times are its report on ‘State Obligations under Articles 74(3) and 83(3) of UNCLOS’Footnote ²² and the book UNCLOS as a Living Treaty,Footnote ²³ both of which have been quoted with approval before the ICJ and ITLOS.Footnote ²⁴ Other important BIICL projects include studies on joint development agreements,Footnote ²⁵ offshore methane hydrates,Footnote ²⁶ climate litigationFootnote ²⁷ and the mitigation of climate change impacts in South Pacific small island States.Footnote ²⁸ In short, both the Institute and its journal have longstanding and deep-seated commitments to the law of the sea, underscored by it being the focus of this first ICLQ Forum.

3. Bringing the Forum on the law of the sea together

Having identified the topic for the Forum, the next step was to ensure that the content of the Forum reflected the traditions of scholarship that exemplify the ICLQ, including fostering and promoting the work of both early career and established academics. This was facilitated by combining an open call for contributions with a small number of directly targeted invitations to contribute, which also helped ensure a suitable spread of subject coverage in light of the response received.

The open call welcomed submissions on a range of preidentified topics including, but not limited to, climate change and sea-level rise, human rights at sea, militarisation and maritime security, the protection of maritime communication infrastructures, the deep seabed mining regime, the implementation of the BBNJ Agreement, governance of marine living resources and developments in maritime delimitation.Footnote ²⁹ In order to help structure the contributions, the Co-Editors emphasised the importance of articles drawing out systemic issues connecting the law of the sea with broader questions of international law, and of having a reflective, forward-looking perspective.

This approach has allowed the Co-Editors to curate the Forum issue to ensure that key topics have been addressed, whilst also allowing the contributors to draw on their expertise and perspectives on the matters considered. It has also facilitated the inclusion of articles focusing on policy and practice alongside the more doctrinal and analytical approaches. All articles were assessed by the Co-Editors on the basis of their academic merit and ‘fit’ with the concept underlying the Forum before being competitively selected following a double-blind peer-review process. Crucially, this has resulted in attracting new authors to the journal and has helped to ensure that there is a variety of academic voices in various discursive registers. The Co-Editors are delighted that the result embraces good gender and geographic balances, as well as a good range of early career and established scholars.

The Forum contains 17 articles, which canvas topics including geoengineering, shipping, offshore infrastructures, security and conflict at sea, maritime delimitation, sea-level rise and climate change, fisheries, protection of the marine environment and human rights. In ordering the Forum articles for publication, the Co-Editors focused not on thematic grouping but on the flow of connections. Thus, it opens with Catherine Redgwell’s forward-looking article examining the influence of technological change on the law, using geoengineering as a case study.Footnote ³⁰ This leads into a series of articles informed by other technological developments—namely, Efthymios Papastavridis’ reflections on the use of maritime surveillance and enforcementFootnote ³¹ and Barbara Ste¸pień and Mauro Arturo Rivera León’s article on autonomous shippingFootnote ³²—before Alexander Lott examines the threats posed to the increasing modern dependence on offshore infrastructure and its legal and security vulnerabilities.Footnote ³³ This then links into the reflections by Christian Bueger, Timothy Edmunds and Jan Stockbruegger concerning the diverse governance frameworks that can be used to address such security challenges,Footnote ³⁴ and then to Makoto Seta’s consideration of the relationship between UNCLOS and the laws on armed conflict at sea.Footnote ³⁵

The next two articles return to issues which have been of long-standing concern and which States have been reluctant to address: Eduardo Cavalcanti de Mello Filho provides a scathing commentary on the continued willingness of some flag States to tolerate (or even solicit) the operation of substandard vessels in ways that threaten order at sea.Footnote ³⁶ Yunjun Li then explores how the law of the sea concerning maritime boundary delimitation still struggles to reconcile itself with geological realities.Footnote ³⁷ These failures to face realities then lead into a series of articles, by Nilüfer Oral, Eirik Bjorge, and Sebastián Rioseco, which consider emerging realities that are also marked by a reluctance to address them head on, namely the impacts of climate change and sea-level rise.Footnote ³⁸ These provoke the thought that perhaps the principle of ‘the land dominates the sea’ is not so clear cut as is usually claimed. Indeed, given its influence on rising tides, it may be that the moon has an increasing claim to domination!

The following four articles address challenges with the governance of areas beyond national jurisdiction. Whilst David Freestone, Fae Sapsford and David Vousden,Footnote ³⁹ So Yeon Kim and Youngdawng Moh,Footnote ⁴⁰ and Shirley Scott and Nengye LiuFootnote ⁴¹ focus on the potential impacts of the BBNJ Agreement, Neil Craik et al highlight that existing international law of the sea institutions face challenges due to their lack of good administrative procedures, focusing on the International Seabed Authority as an illustration.Footnote ⁴² A concern with proper procedure informs the article by Aleke Stöfen-O’Brien concerning the negotiations for a plastics treaty, albeit from a law creation perspective.Footnote ⁴³ Whilst there might appear to be a disjuncture between this and the final chapter by Reece Lewis and Sofia Galani, examining the difficulties of protecting human rights at sea, both are united by their focus on the roles that can be played by non-State actors in ensuring better protections through engagement with law of the sea institutions.Footnote ⁴⁴

4. Present challenges and future directions in the law of the sea

UNCLOS is often described as a ‘living treaty’.Footnote ⁴⁵ As a dynamic and creative field of study, the law of the sea is able to respond to newly emergent interests and issues. Yet we are faced with challenges that stretch the law’s capacity to effectively govern the oceans in the face of systemic challenges such as climate change, intensified use of ocean space and resources and increasing insecurity at sea, whether from geopolitical instability, environmental degradation or exploitation of people. In the face of such challenges, it is timely to reflect upon how the law of the sea can respond.

Taken in combination, these various articles help to highlight, and illustrate, some of the central challenges facing the law of the sea today. The centrality of UNCLOS is nowadays taken as a given from which all else flows. Whilst is it not immutable, it is certainly foundational. Change occurs through accretion and addition, but not through fundamental re-appraisal. Yet this orthodoxy is not entirely correct. New zonal concepts—or at least, new zonal apparatus—continue to emerge, as with the concept of Marine Protected Areas, now morphing into ‘Area-based Management Tools’ under the BBNJ Agreement. Of course, this begs the question: tools for what? And for whom?

It is difficult to read much of the text of UNCLOS, and particularly those articles whose origins derive from the earlier 1958 Conventions, and not be struck by how very different they are from those of the subsequently adopted ‘implementation’ agreements under UNCLOS, and in particular the BBNJ Agreement. For all the lack of clarity concerning some of the provisions of UNCLOS, the general thrust of each of its parts—their spheres of regulation, the underlying principles applicable to their subject-matter and their inter-relationship with other elements of the Convention framework—are relatively clear and provide a ‘grounding framework’ for the ordering of the oceans. Fast forward to the BBNJ Agreement and its very subject-matter and scope of application is as opaque as its mechanisms for achieving them. On one level, this merely reflects the increasing levels of scientific knowledge and technical capacity which can now be brought to bear upon the resolution of the problems which the structures of the law of the sea are designed to address. In the very broadest of terms these can properly be summed up in non-legal language as ‘who can do what, and where’? And for all its complexity, the BBNJ Agreement, like the other Implementing Agreements before it, still seeks to address those questions from within the traditional paradigm of the law of the sea—which is that of the freedom of the seas in areas beyond national jurisdiction, but with those freedoms being progressively and consensually curtailed by States in order to acknowledge and address emergent issues related to the governance of activities in the maritime space of an increasingly fine-grained nature.

The latter observation is significant: the trend has been towards the need to regulate and balance potentially conflicting interests and usages in increasingly technical fields by the importation of expertise that sits outside the general law of the sea framework. As a result, what are often referred to as interstitial principles have provided the legal vehicles through which this occurs. But does this run the risk of undermining the clarity that effective management of ocean governance and operations at sea requires? And who manages, and for whom? Are the interests of States—some, perhaps, fixed on the abiding significance of international trade, some on resource exploitation, others on resource management whilst others are looking to sea-level rise as an existential threat—really all to be ‘balanced’ off according to the various diplomatic capacities of those States within international fora? Can the vital interests of one State in the shared maritime sphere so readily be set aside by the decisions of others in ways which would not be possible in the terrestrial domain? It may be that the interface between the ordering principles of the law of the sea and needs of ocean governance are becoming increasingly strained.

Standing back from the detail of these contributions, perhaps the overarching question that needs to be faced is exactly that: does the current approach to the law of the sea, as reflected in these Forum articles, reflect the inevitable tensions inherent in legal change and development over time, or do they point towards more fundamental challenges to the essentially State-centric interests’ approach upon which the subject is founded? And if they do, are they qualitatively different from similar challenges concerning terrestrial spaces? It is not obvious that they are. The law of the sea has been a proving ground for varied approaches to legal regulation over time: perhaps the time has come to think further about how lessons learnt from the law of the sea might be of use in addressing problems currently facing the application of international law more generally. Such reflections add to the pertinence of this collection, whilst suggesting also that a return to these themes may well be needed in a future ICLQ Forum or regular submissions to the journal.