Law of the Sea

by

Eugenia López-Jacoiste

• LAST REVIEWED: 11 January 2018
• LAST MODIFIED: 11 January 2018
• DOI: 10.1093/obo/9780199796953-0162

Introduction

On 10 December 1982, the Third UN Conference on the Law of the Sea finally adopted the UN Convention on the Law of the Sea (UNCLOS) as a “package deal” after years of protracted and arduous negotiations. The Convention provides a comprehensive legal framework. It regulates inter alia all ocean space, its uses and resources, and the establishment of maritime zones and marine environmental protection. The Convention was opened for signature on 10 December 1982 and entered into force on 16 November 1994. The legal regime on deep seabed mining (Part XI of UNCLOS) used to be a main obstacle for ratification of the Convention by Western states and blocked the entry into force of UNCLOS. The 1994 agreement relating to the Implementation of Part XI of UNCLOS regulated the commercial exploitation of the deep seabed and led to more countries ratifying the Convention. The Convention is of enormous historic significance, second only to the UN Charter itself, due to its universal scope and the principles and specific rules that it set forth and due to having won nearly universal formal ratification, albeit with exceptions, among the sovereign nations of the world. As of 16 June 2016, 169 states were parties to UNCLOS. Even for the few nations that have not ratified, the United States most notable among these outliers, UNCLOS has been honored as providing the essential legal principles as well as the framework for the further development of international ocean law. In fact, the United States now recognizes UNCLOS as a codification of customary international law. It should be noted that the states that have signed the UNCLOS are not bound to follow the Convention. Therefore, UNCLOS is a legal instrument of paramount importance for the entire international community. It is based on the fundamental premise that all the problems of the oceans are closely interrelated and need to be considered as a whole. The 320 articles and 9 annexes have been rightly lauded as a “Constitution for the Oceans” and the most significant legal instrument of the 20th century. The Convention addresses many of the contentious issues that previous conferences on the law of the sea had been unable to settle. UNCLOS has also inspired the development of soft law and, in the largest sense, the emerging definition of inspirational principles for advancing the rule of law, peaceful relations, and sustainable use of global marine resources. Yet overall, the Law of the Sea remains a field of unsolved issues. It still faces a host of issues relating to distribution other than territorial jurisdiction over natural resources. They range from deep seabed mining in the Area and related transfers of technology to the coordination of communication and extraction of resources; from the compensatory rights of landlocked and geographically disadvantaged states to finding a proper balance in preventing and combating marine pollution, chronic overfishing, and the preservation of biodiversity.

Monographs

The literature on the Law of the Sea usually shares a common structure: a historical perspective of the use of the sea and the ocean; the negotiations during the Third UN Conference on the Law of the Sea; the UNCLOS provisions with special mention of rights and obligations of coastal states in exploring the sea and the ocean; the institutional system; and the rules in regard to marine scientific research, marine environmental protection, and the maritime zones delimitation. Most of the monographs also offer a detailed analysis of particular situations. Although the most recent monographs are vital for understanding the current maritime and territorial sovereignty claims, the systematic commentaries on the Convention may be interesting for those who are looking for a global perspective. A good starting point is Dupuy 1991, which makes a systematic analysis of the approved Law of the Sea in 1982. Treves 1990 is particularly useful for those wanting to understand how the catalogue of maritime zones defined by international law and practice has evolved so considerably. Harrison 2011 gives a basic account of the legal framework within which all activities in the oceans and seas must be carried out. Nordquist, et al. 2011, together with its supplementary documents (Nordquist 2012), provides a broad analysis of UNCLOS framework, although states have had to develop detailed rules and standards to regulate a particular activity, as explained in Tanaka 2015. Scovazzi argues in his General Course at The Hague Academy that the erosion of the principle of freedom of the sea has become definitely the main trend in the evolution of the international law of the sea (Scovazzi 2000). Most recently, Rothwell and Stephens 2016 presents a new systematic analysis of the UNCLOS regime including the relevant case law. Edited books are also very common. Sobrino Heredia 2014 presents different opinions on various marine zones, their delimitation problems, and the new technological trends. Del Castillo 2015 explores a more suitable analysis for scholars who pursue a more concise study of the evolution of the Law of the Sea and the most recent problems. Finally, Rothwell, et al. 2015 provides a coherent exposition and comprehensive analysis of the current debates and controversies of the Law of the Sea, both theoretical and practical.

• Del Castillo, Lilian, ed. The Law of the Sea, from Grotius to the International Tribunal for the Law of the Sea, Liber Amicorum Judge Hugo Caminos. Leiden, The Netherlands: Brill, Nijhoff, 2015.

  In forty-two chapters authored by specialists of diverse backgrounds, this edited collection provides in-depth studies of a broad range of general and specific topics related to all relevant areas of the Law of the Sea. Most chapters deal with the complex issues from two perspectives: from the configuration of sovereign interests and from the perspective of international cooperation.

• Dupuy, René-Jean. A Handbook on the New Law of the Sea. 2 vols. Académie de droit international de La Haye. Leiden, The Netherlands, and Boston: Brill Nijhoff, 1991.

  This work comprises two volumes. Volume 1 deals with the multidimensional character of the Law of the Sea, its sources, the Pardo Declaration, the six years of the Sea-bed Committee, and the Third UN Conference of the Law of the Sea. Volume 2 focuses on more specific topics such as navigation, fisheries and biological resources, marine scientific research, transfer of marine technology, and the preservation of the marine environment.

• Harrison, James. Making of the Law of the Sea: A Study in the Development of International Law. Cambridge, UK: Cambridge University Press, 2011.

  DOI: 10.1017/CBO9780511974908

  Harrison argues that the Convention regime needs to be adapted in order to take into account technological and scientific developments in relation to the oceans, as well as changes in the political values of the international community. Many of these necessary developments in the Law of the Sea regime have taken place through international institutions. The value of this work lies in that it emphasizes the importance of new implementing agreements in order to rectify problems unsolved in UNCLOS.

• Nordquist, Myron. UNCLOS 1982 Commentary: Supplementary Documents. Leiden, The Netherlands: Brill, 2012.

  DOI: 10.1163/9789004215627

  This supplement to the seven-volume series United Nations Convention on the Law of the Sea 1982: A Commentary (Nordquist, et al. 2011) contains additional primary documents and materials directly related to the Convention. The book is divided into five parts: the International Seabed Associated with the 1982 Conventions and other supplementary documents and materials.

• Nordquist, Myron, Satya Nandan, and Shabtai Rosenne, eds. United Nations Convention on the Law of the Sea, 1982: A Commentary (1985–2011). Dordrecht, The Netherlands: Brill Nijhoff, 2011.

  This treaty is one of the leading general systematic works of UNCLOS. It examines the history of this codification, the concepts, factors, process, and results. The commentary is based entirely on the formal and informal documentation of the Third UN Conference on the Law of the Sea and it is the result of an academic research project that provides an objective and comprehensive analysis of the Convention and the Agreement relating to the Implementation of Part XI of UNCLOS.

• Rothwell, Donald, Alex G. Oude Elferink, Karen N. Scott, and Tim Stephens, eds. The Oxford Handbook of the Law of the Sea. Oxford: Oxford University Press, 2015.

  This handbook explains how the Law of the Sea has developed and the challenges being currently faced. Collectively, the chapters were produced by thirty-five experts and four editors. All of them offer authoritative and up-to-date surveys of original research in particular subject areas.

• Rothwell, Donald, and Tim Stephens. The International Law of the Sea. Oxford and Portland, OR: Hart, 2016.

  This second edition offers relevant law cases useful to practitioners, presenting historical accounts of marine zone and draft articles of the International Law Commission. It presents illustrations and tables to ensure a better understanding of the subject. The author concludes by speaking of the challenges and future perspectives of the current trends.

• Scovazzi, Tullio. The Evolution of International Law of the Sea: New Issues, New Challenges. Collected Courses of The Hague Academy of International Law 286. Leiden, The Netherlands, and Boston: Hague Academy of International Law Brill, 2000.

  The author suggests that UNCLOS should be interpreted in an evolutionary way. This is especially true in cases where the most undesirable consequences of the principle of freedom of the sea and its corollary of exclusive flag state jurisdiction over ships on the high sea become evident, and when new concerns that also require an evolutionary interpretation are not given due consideration. In this author’s view, the present challenges of the law of the sea are to be found in the practical capacity of states to adopt and change old principles to conform to new needs.

• Sobrino Heredia, José Manuel, ed. The Contribution of the United Nations Convention on the Law of the Sea to Good Governance of Seas and Oceans. 2 vols. Naples, Italy: Editoriale Scientifica, 2014.

  This two-volume edited book is one of the most comprehensive studies of the Law of the Sea. It includes contributions from forty-seven experts who participated in 2014 in the Colloque Ordinaire de L’ Association internationale du droit de la mer.

• Tanaka, Yoshifumi. The International Law of the Sea. Cambridge, UK: Cambridge University Press, 2015.

  This new edition is a systematic analysis of the different marine zones and their problematic applications by states and tribunals. All issues are illustrated through case law of international courts and tribunals, particularly the International Court of Justice, the International Tribunal of the Law of the Sea, and arbitral tribunals. Compared to the previous edition, its novelty is that it discusses marine areas beyond national jurisdiction in much more detail.

• Treves, Tullio. “Codification du droit international et pratique des États dans le droit de la mer.” Recueil de Cours de l`Académie de droit international de La Haye 223.4 (1990): 9–302.

  Treves offers an in-depth systemic analysis of the impact of the states’ practices in the codifying process of UNCLOS considering the fact that the catalogue of maritime zones defined by international law has evolved considerably. The current codification of the Law of the Sea has been reached after three long and complex UN conferences. Maritime zones different from those provided for in the Convention are, at times, established by states.