This chapter challenges the dominant paradigm of a ‘use of force’ in article 2(4) of the UN Charter as a coherent concept by giving examples from the subsequent agreement and subsequent practice of States showing that none of the elements of a ‘use of force’ is strictly necessary for the definition to be met. It examines anomalous examples which lack the elements of physical means, physical effects, gravity or hostile intent, taking as a basis of analysis certain acts listed in the 1974 Definition of Aggression: military occupation (article 3(a)), blockade (article 3(c)), mere presence in violation of a Status of Forces Agreement (article 3(e)) and indirect use of force through inter-State assistance (article 3(f)) or through non-State armed groups (article 3(g)). It also examines anomalous examples of non-‘use of force’: acts which appear to meet the criteria but are not characterised as such by States in their subsequent practice. These include forcible response to aerial incursion and purported maritime law enforcement. This chapter then offers possible explanations for these anomalous examples and discusses the implications for the interpretation of a prohibited ‘use of force’.

In 2013, the Philippines commenced arbitral proceedings against China under the 1982 United Nations Convention on the Law of the Sea. Since the award was issued in 2016, which in large part was favourable to the Philippines, China has refused to recognise the award. This chapter offers an analysis of the arbitration proceedings and the award using a popular animated film – Disney’s Raya and the Last Dragon – as a lens. The chapter analogises the themes in Raya with the factual background of the arbitration, with the aim of reshaping international support to help bring about compliance with the award. The conflict in Raya effectively communicates that conflict over scarce resources and overlapping territories cannot be resolved by aggression, mutual distrust, and lack of cooperation. While the Convention lacks a compliance mechanism, this chapter envisages that the Convention’s conciliation procedure may present a path forward even if China does not voluntarily comply with the award. This cooperative process aims to bring China back to the table, in renewed efforts towards a settled outcome.

The law of the sea is developed from centuries of national practices; China’s practice has also played a role in that process. International law was introduced into China in the late Qing dynasty. After the Opium War in 1840, the Qing dynasty government had to learn and accept international law, including the law of the sea, as created by the Western countries in order to negotiate and communicate with them. From 1840 until the establishment of the People’s Republic of China in 1949, there were some practices in applying the law of the sea in China focussing on territorial sovereignty and fisheries interests. In the 1970s, the Chinese delegation participated fully in UNCLOS III, ushering in a new era in the practice of the law of the sea. China has made important contributions to the formulation of UNCLOS. It has actively implemented the law of the sea through domestic practices including legislation, law enforcement and judiciary, as well as bilateral consultations and cooperation on law of the sea issues with its maritime neighbours. China is committed to upholding the maritime order with the United Nations at its core and based on international law.

The earth’s oceans are expansive and cover nearly three-quarters of the planet. Historically, extracting resources from the sea-bed was considered impossible given the pressure of the ocean. However, extractive technologies have developed rapidly over the past 50 years, making offshore mining easier. This has intensified the commercial focus of offshore mining for energy resources such as petroleum and gas. The regulatory framework for this type of mining is, however, fundamentally different from that which applies to the onshore domain. The jurisdictional framework is unique, because projects may be subject to domestic or international laws depending upon their location. The ecological and environmental imperatives are diverse because offshore waters are the habitat of a vast array of marine eco-systems. Offshore waters are not inhabited and the absence of private property means that offshore projects are not subject to property interface concerns. Offshore drilling for petroleum and gas resources residing within the rock formations beneath the sea-bed has been made possible by drilling techniques capable of navigating the underwater environment.

Although islands have long been geologically, ecologically, economically and strategically linked to oceans, they are now juridically linked to them, also. The UN Convention on the Law of the Sea grants states the right to claim exclusive economic zones projecting up to 200 nautical miles from their coasts, and continental shelves projecting up to 350 nautical miles. Bird islands have been transformed into anchors of pelagic sovereignty, leading to fierce diplomatic disputes over the legal definition of island-ness.

Nature conservation has also served as one means of forging new legal connections between islands and oceans, for in the past few years pelagic states have established a series of vast oceanic reserves anchored by bird islands. The US has expanded Roosevelt’s Hawaiian Islands Reservation into the Papahānaumokuākea Marine National Monument, and Britain has established the Chagos Islands Marine Protected Area in an attempt to protect the US military base on Diego Garcia. It is hard to find a more chilling example of nature conservation as a tactic for conserving sovereignty over territory.

The law of the sea, one of the oldest areas of international law, is now substantially codified in the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’), the ‘constitution for the oceans’. UNCLOS ushered in the modern law of the sea, providing a comprehensive regime for maritime zones, navigational rights and freedoms, fishing and other uses of the world’s oceans that cover approximately 70% of the Earth’s surface. As an island country with extensive maritime zones, Australia has a major stake in the law of the sea and has been actively involved in its development and implementation. Australia was one of the original signatories to UNCLOS and ratified it in 1994, the year it entered into force generally. The central issues of concern for the law of the sea have traditionally been the extent of maritime jurisdiction and navigational rights. However, a much broader range of matters is addressed in contemporary law and practice, from sustainable fisheries management through to mining of the deep seabed beyond national jurisdiction. There are also major new challenges on the horizon – none more so than climate change.

With depletion of the oceans through overfishing and other anthropogenic and other activities, law seems incapable of adequately protecting marine biodiversity. Through green legal theory, this Chapter demonstrates the entanglement of the United Nations Convention on the Law of the Sea’s marine conservation framework with economic growth and begins reflecting on how to move past the limitations of this framework to build better rules for the protection of marine life. Part II offers a summary of green legal theory and its applicability to the law of the sea context. Part III analyses the current law of the sea regime regarding conservation of marine life through a green theory lens. Part IV concludes the Chapter by looking forward and thinking through means of reimagining the regime through strategic revolution, focusing on the future implementing agreement on biodiversity beyond national jurisdiction.

In the context of increasing pressure to decisively address the issue of GHG emissions from shipping, this Chapter examines the relevance and fitness for purpose of UNCLOS as a framework for ongoing efforts to tackle this issue. Considering the time when it was negotiated, it should come as no surprise that the Convention makes no express reference to climate change. This does not mean that UNCLOS has no role to play. The Chapter examines the Convention’s definition of ’marine pollution’, general provisions such as Articles 192 and 194 as well as the Convention provisions on flag, coastal and port State jurisdiction. The main conclusion is that UNCLOS is adequately placed to fulfil its designated function as a constitution for the oceans, but its provisions must be complemented by more detailed technical rules. In line with UNCLOS, these measures also need to be systemically integrated with the wider international environmental law framework.

This Chapter discusses the legality of proposed plans to utilise icebergs as an alternative source of freshwater. This is an example of emerging demands on the oceans which need to be regulated by an adequate rule of law. The Chapter maintains that UNCLOS does not adequately regulate the potential use of icebergs. The only limitations are that States cannot utilise icebergs found in the maritime zones of other States and must observe the obligations under Part XII of UNCLOS to protect the marine environment. The Chapter also analyses the relevant instruments within the Antarctic Treaty System. None of these instruments indicates a prohibition against the use of icebergs. The only limitation is one of conducting an environmental impact assessment. Therefore, the Chapter identifies a gap in the regulatory capacities of international law. In addressing this gap, the Chapter discusses the potential of ongoing BBNJ negotiations.

The projected impacts of climate change and greenhouse gas emissions pose a significant threat to marine life and biodiversity. Ocean warming might affect fish stocks, their health and migratory routes. Ocean acidification and de-oxygenation are two phenomena that affect certain marine species as well as entire marine ecosystems. Rebuilding of overexploited and depleted fisheries and managing fisheries sustainably will require comprehensive governance structures for port, flag, coastal and market States, which also need to address the causes and impacts of climate change. Addressing both concerns under the United Nations Convention on the Law of the Sea (UNCLOS) could open opportunities for comprehensive and synergetic regulation. This Chapter addresses potential synergies between oceans and climate governance. Suggestions to this end include (i) increasing ocean-based renewable energy, (ii) decarbonizing ocean-based transport, (iii) pursuing integrated management of fisheries and aquaculture, and (iv) enhancing CO2 uptake in ocean ecosystems.

This Chapter provides an overview of the Japanese legal system governing marine environmental conservation and Japan’s approach towards the management, conservation and sustainable use of marine living resources, including whales. Commercial whaling is part of the broader international environmental law debate: ensuring environmental protection while facilitating sustainable use of the natural resources of the sea. Discussions on promoting sustainable whaling at the global level are needed. The answer may be, against popular opinion in some countries, to allow limited but internationally monitored, whaling in specific locations, while stopping whaling altogether in other locations. Such approach could be adjusted based on independent and politically uncompromised scientific evidence. As scientific knowledge advances and whale stock management theories become more complex, scientific advice may not necessarily produce clear-cut answers. In situations of scientific uncertainty, the precautionary principle can allow rational decisions – provided the principle is not misinterpreted and transformed into a principle of inaction.

The impact of climate change on the distribution of fish stocks and other marine species is a pervasive problem that causes governance issues and threatens the rule of law for the oceans. Fish moving across static jurisdictional and management boundaries may become unregulated and risk being overexploited. Shifting fish stocks threaten the certainty, predictability and stability of the international fisheries legal framework, and undermine conservation and management measures by coastal States and regional fisheries organisations, impeding sustainable exploitation and conservation of global fish stocks. This chapter assesses whether and to what extent the international legal framework adequately places an obligation upon States to adapt to the complexities caused by MLRs shifting their location, to maintain the rule of law. It assesses whether the key principles and obligations under the international framework are fit for purpose to address these issues. It indicates that there is a general obligation on States, either individually or collectively, to adapt the management of marine living resources to the effects of climate change. It concludes with potential solutions which may strengthen an adaptive response.

The traditional regime regulating international fisheries appears inadequate at ensuring the rule of law, since many States are unwilling or unable to respect their relevant obligations. This chapter examines the potential of using litigation to increase compliance with existing norms in the field of fisheries, in particular, to address issues with flag States, coastal States, and States involved in the fishing of shared stocks. This research finds that recourse to international courts and tribunals is an option that should be considered by States, in that it could bring an end to specific violations, hence tackling the most egregious cases of non-compliance, as well as enabling clarification of certain obligations, especially by way of advisory opinions. Nonetheless, it must be recognized that litigation has severe limitations, especially in that it is a costly endeavour, both in political and monetary terms, hence destined to remain a rare occurrence. Also, litigation can only successfully address non-compliance due to lack of willingness, leaving unsolved the large(r) problem of lack of capacity. Hence, while litigation may certainly have a role to play in the field of fisheries, other mechanisms, in particular, regular, objective and comprehensive compliance procedures, should also be developed and/or strengthened.

This chapter looks at reciprocity in the jurisdiction of international courts and tribunals, and the differences in the role reciprocity plays in inter-State dispute settlement, and in dispute settlement procedures that involve non-State entities such as individuals. It looks at the well-developed role that reciprocity plays in the jurisdiction of the International Court of Justice, before turning to the system of compulsory dispute settlement in the United Nations Convention on the Law of the Sea (UNCLOS). The chapter then analyzes three types of instance which concern individuals: the International Criminal Court; human rights courts and complaint mechanisms; and investment tribunals, specifically the issue of the extension of jurisdiction on the basis of an MFN clause.