University of Tokyo: The dynamic world of the law of the sea

The dynamic world of the law of the sea

Issues arise all the time for which there are no express provisions in the United Nations Convention on the Law of the Sea. For example, is it possible to regulate the docking of foreign ships carrying COVID-19-infected passengers? What should be done if a country’s ship is attacked in distant seas? Is it acceptable to bury carbon dioxide in the sea floor? Here, international law expert Professor Yumi Nishimura outlines international rules on the sea.

The flag state of the research vessel Hakuho Maru is Japan. The vessel has a ginkgo leaf and the letter “T” on its smokestack. Photo credit: Koji Hamasaki, Atmosphere and Ocean Research Institute

Basic rules on these maritime zones are laid down in the United Nations Convention on the Law of the Sea (UNCLOS), adopted in 1982, and the International Tribunal for the Law of the Sea (ITLOS) was established to rule on international disputes in relation to the Convention. However, new issues regularly arise for which the Convention has no express provisions. For example, you may have heard about a number of issues in relation to waters under the jurisdiction of a coastal state where the interests of that state have to be reconciled with those of other states, such as whether the entry of foreign ships into internal waters can be regulated in the midst of the COVID-19 pandemic; whether it is legal to discharge treated water from the Fukushima nuclear plant into the ocean; how to ensure safe passage for ships through the Strait of Hormuz given the situation in the Middle East; how to delimitate continental shelves where the waters of multiple neighboring countries overlap; and whether one country can develop a gas field in waters where maritime boundaries have yet to be delimitated.

When it comes to international waters, the question becomes who controls these waters and in what way. Ships can navigate international waters as long as they are registered to a country, with their activities on the high seas basically controlled by that country (their “flag state”). This practice is designed to ensure smooth international navigation without the interference of multiple countries and to maintain order on the high seas through flag state control. However, if, for example, a ship is attacked by pirates off the coast of Somalia, the flag state might not be able to get there immediately. Ships also tend to choose countries with low taxes and loose regulations as their flag states (for example, see Figure 2 in relation to Japan’s merchant ships), and flag states lack both the will and the capability to engage in frequent enforcement for the sake of ships flying a flag of convenience that have no actual ties with the flag state. To prevent overfishing and maritime pollution, various international conventions have been adopted to limit fish catches and maritime discharge, but they are simply pie in the sky in the absence of enforcement by flag states. Steps therefore need to be taken to make regulations more effective.
Rules also need to be revised and created in response to scientific and technological advances. Should countries be allowed to bury carbon dioxide in the sea floor as a means of combatting global warming? To spread huge volumes of iron to encourage chlorophyll growth? What about using the genetic information of deep-sea creatures for new drug development?

Law is often associated with lists of dull provisions. However, to interpret the existent provisions or to create new rules in responding to technological advances and changing interests requires analyzing state practice to determine a suitable way of regulating and coordinating the various uses of the sea in light of institutional goals and purposes while also maintaining consistency with the overall framework of international law. To that extent, it is in fact a surprisingly dynamic discipline!

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