This foreword introduces the inaugural International and Comparative Law Quarterly (ICLQ) Forum, a new initiative designed to provide in-depth analysis of a particular field of law within the ICLQ’s sphere of interest. The first Forum focuses on the law of the sea, a subject with which the journal has been closely associated since its inception. The choice of theme reflects both the ICLQ’s historic contributions to maritime scholarship and the renewed urgency of ocean-related legal challenges. The collected contributions examine contemporary developments, including the implementation of the Agreement on Marine Biological Diversity of Areas Beyond National Jurisdiction, climate change and sea-level rise, maritime security, fisheries governance and human rights at sea. Together, they assess the continuing vitality of the United Nations Convention on the Law of the Sea as a ‘living treaty’ and interrogate its capacity to respond to shifting geopolitical, environmental and technological realities. Beyond charting doctrinal evolution, the Forum highlights the law of the sea’s systemic significance for the development of international law more broadly. It invites reflection on whether the traditional State-centric framework can sustain effective ocean governance in the face of accelerating global pressures.

This article uses the Sargasso Sea as a case study to provide an analysis of the provisions of Part III of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement) on measures such as area-based management tools (ABMTs), including marine protected areas. The ability of the BBNJ Conference of the Parties (COP) to establish internationally legally binding ABMTs in areas beyond national jurisdiction (ABNJ) presents a new opportunity for the conservation of the Sargasso Sea. Existing work of the Sargasso Sea Commission, as well as the preparations it could make to support a proposal by one or more States Parties to the new COP for an ABMT in the Sargasso Sea are discussed, as is the comprehensive process the BBNJ Agreement establishes for stakeholder engagement as part of the submission of proposals. The Sargasso Sea Commission has a long history of collaboration with international organisations, governments, scientists and others to strengthen the stewardship of the Sargasso Sea. More recent activities to engage directly with the shipping industry stakeholder group specifically are discussed. Finally, the article discusses the work being undertaken in collecting the best available science, collaboration with other international frameworks and bodies and other stakeholders, and the preliminary work on the development of an outline management plan particularly in relation to ongoing monitoring using remote sensing capacity.

The International Seabed Authority (ISA) is tasked with regulating deep seabed mining (DSM) in areas beyond national jurisdiction for the benefit of all humankind. Unlike most international institutions, the ISA operates as a frontline resource regulator with direct authority over DSM contracts and activities. To effectively carry out its regulatory mandate, the ISA operates under a complex institutional structure involving the delegation of significant powers to non-plenary bodies and administrative actors. As decision-making shifts to bodies less directly linked to State consent, it becomes increasingly important to ensure that these actors remain accountable both to the States granting them authority and to those affected by their decisions. This article argues that there is a mismatch between the ISA’s decision-making structure and its systems of administrative accountability that lead to a problem of affected interests being disregarded. The article highlights the structural and practical barriers that lead to this and then turns to an examination of the process mechanisms that the ISA has put in place to ensure that its decisions are responsive to affected interests. Whilst the ISA has some positive ad hoc procedures in place, it does not consistently institutionalise core administrative law pillars such as transparency, meaningful consultation, and the opportunity for review of decisions. A challenge for the ISA is to identify the range of accountability relationships created by the DSM regime, and to develop clear and consistent standards of accountability that can address the problem of disregard.

Maritime security challenges are intensifying globally, from armed attacks on shipping in the Red Sea to critical infrastructure sabotage and environmental threats from shadow fleets. These developments have led some to question whether the United Nations Convention on the Law of the Sea (UNCLOS) remains ‘fit for purpose’. This article reframes that debate, suggesting that maritime security operates through a complex assemblage of institutions and mechanisms. In this context, UNCLOS is best understood not as a monolithic ‘constitution’, but as one important site in a more complex and dynamic system of maritime security governance. It examines how the United Nations (UN) system, regional organisations and informal arrangements collectively address maritime security challenges, revealing both the strengths and limitations of this diverse governance landscape. The analysis shows that while this complexity enables flexible responses to varied challenges, it also creates coordination problems and accountability gaps. Rather than calling for a revision of UNCLOS, the article proposes three pathways for recalibrating the system: establishing a dedicated UN maritime security body; addressing interface conflicts through targeted interventions; and selectively formalising successful informal mechanisms.

Climate change resulting from human activity is causing sea-levels to rise. Rising sea-levels pose an existential threat to small islands. Some have argued that this might result in islands losing their status as ‘islands’ and, at the same time, their maritime areas. The present article disagrees. In order to qualify as an ‘island’, a coastal feature must be ‘a naturally formed area of land, surrounded by water, which is above water at high tide’: Article 121(1) of the United Nations Convention on the Law of the Sea (UNCLOS). A feature that meets these requirements is, according to Article 121(2), entitled to a territorial sea, an exclusive economic zone and a continental shelf. Article 121(3) provides that rocks which cannot sustain human habitation or an economic life of their own have no exclusive economic zone or continental shelf. The words ‘naturally formed area of land’, as well as broader considerations, suggest that the status of a feature is determined on the basis of its natural condition—not changes generated by human activity. Just as construction through human artifice cannot elevate a coastal feature into an island, man-made climate change which causes sea-level rise cannot turn an island into something other than what is described in Article 121(1).

This article explores the intersection of, and relationship between, the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement and the Antarctic Treaty System (ATS). It examines the status of the Southern Ocean as an ‘area beyond national jurisdiction’ before analysing the application of the ‘not undermine’ principle to the ATS as developed in Article 5 BBNJ Agreement. The article examines the implications of the BBNJ Agreement in relation to environmental impact assessments, area-based protection, marine genetic resources and dispute resolution within the ATS. It argues that the thus far defensive approach of the Antarctic Treaty parties to the BBNJ Agreement is neither sustainable nor in the long-term interests of either agreement. It argues for positive engagement between the two regimes for the ultimate benefit of Southern Ocean governance.

International fisheries law has so far proven inadequate to prevent over-fishing on the high seas, a key cause of biodiversity loss in areas beyond national jurisdiction (ABNJ). The negotiation of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement) provided an opportunity to respond decisively to the worsening problem. After some 20 years of preparation and negotiations, the BBNJ Agreement was concluded in 2023 and will enter into force in early 2026. From about mid-way through the process, the major distant-water fishing States advocated for a treaty text that minimised any significant impact upon their distant-water fishing operations. The terms of the BBNJ Agreement do not preclude its operationalisation contributing to a step change in protecting ABNJ from biodiversity loss by distant-water fishing operations but, at this point, such an outcome appears unlikely given the attitude of the distant-water fishing States during the negotiations, in combination with the institutional and decision-making provisions of the BBNJ Agreement.

This article explores the law governing the nationality of ships in the context of the recent surge of the so-called ‘dark fleet’. Traditionally, international law governed the nationality of ships, inter alia, to ensure effective control by the flag State over its ships, a concern heightened by the rise of open registry States, which were supposedly unable to exercise effective control. Despite initial scepticism, the general acceptance of open registries as well as the fact that small States like the Marshall Islands can be responsible flag States have mitigated this concern. However, the emergence of ‘flags of deceit’ (FODs)—flag States consciously enabling the operation of dark ships—poses a different problem. In welcoming ‘fleets’ of ships that are poorly maintained, in breach of international maritime regulations or engaged in illicit activities, FODs are not simply unable but, rather, unwilling to exercise effective control over their vessels, threatening the public order at sea. This article argues that other States have the right to refuse to recognise FODs with a view to protecting their own rights from dark ships left adrift by their respective flag States through their unwillingness to exercise effective control.

It is now generally accepted that human rights law applies at sea, yet uncertainty remains as to how it operates within the maritime domain. The United Nations Convention on the Law of the Sea contains few references to the treatment of individuals and many of the central concepts of the law of the sea that are reflected in it—such as functional zones of maritime jurisdiction, flag State jurisdiction and the freedoms of the seas—present challenges to the effective application of human rights law. Moreover, human rights law was developed with a terrestrial focus, making its application at sea equally problematic. This article argues that before practical solutions can be proposed to address this conflict of regimes, it needs to be recognised that human rights law does not apply at sea in the same way that it applies on land: the practical realities of the maritime environment shape the scope and content of rights. It argues that there is a need to clarify what constitutes a genuine human rights issue in the maritime domain, distinguishing these from other forms of poor treatment or regulatory non-compliance. It examines how the law of the sea and human rights law might interact more effectively, considering both conceptual and contextual adjustments necessary for realistic and enforceable protection of human rights in the maritime domain.

A significant impetus for the negotiation of the United Nations Convention on the Law of the Sea (UNCLOS) was the impact of new technological and scientific developments on the law of the sea. Such developments have continued apace, raising the question of how UNCLOS continues to respond to new uses of, and threats to, the oceans. This article focuses on marine geoengineering as an emerging technological response to the climate emergency and its regulation by the specialised global dumping regime of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and its Protocol within the general normative framework provided by UNCLOS. It demonstrates how responding to technological developments is hard-wired into the DNA of the law of the sea, and into UNCLOS in particular, which remains the foundation for the governance and management of new maritime technologies.

This article examines the legal framework for offshore CO2 sequestration in South Korea, paying particular attention to how to ensure the protection of the marine environment from CO2 sequestration in sub-seabed geological formations. It analyses the relevant international regulatory framework, including the 1982 United Nations Convention on the Law of the Sea, the 1972 London Convention and the 1996 London Protocol. It then examines the Korean national legal framework relating to offshore CO2 sequestration. In the absence of detailed regulations on the process of CO2 sequestration in sub-seabed geological formations in South Korea, the article suggests detailed regulations regarding site selection, assessment of potential risks, monitoring and long-term liability to ensure environmental safety and security from offshore CO2 sequestration, which should comply with the 1996 Protocol and relevant guidelines. The development of detailed Korean national regulations ensuring compliance with international rules and standards could serve as best practices driving offshore CCS in the Asia-Pacific region.

The notion of infrastructure has recently featured prominently in international legal scholarship. The ambition behind the turn to infrastructure in international legal theory is comparable to other large attempts to conceptualize the discipline. Yet, against the backdrop of work in the humanities and social sciences, theoretical engagement with infrastructure is still nascent in the legal discipline. In this Article, we build on another recent development in international legal scholarship—the turn to “materiality”—to articulate a systematic theory of infrastructure in international law. At the center of our study is the case study of the cruise ship. Studying cruise ships and their legal and political environment in detail, we introduce three conceptual building blocks through which we develop a more comprehensive theory of infrastructure: Platform, object and rupture. Although we focus on cruise ships, the theory of legal infrastructure that we offer is applicable to a wide array of industries and issues.

The duty to render assistance to persons in distress is well established in the international law of the sea, but none of the instruments which codify the duty contains human rights obligations. However, serious human rights violations may occur during search and rescue (SAR) operations or because of the lack thereof. This article examines the duty of States to render assistance to persons in distress through the lens of international human rights law and advocates for a human rights-oriented approach to SAR. It discusses the due diligence nature of the duty, the scope of jurisdiction in maritime SAR and how States should act to adhere to their human rights obligations from the moment they receive a distress call through to the moment they disembark rescued persons on land.

It has been over 40 years since the United Nations Convention on the Law of the Sea (LOSC) was concluded and opened for signature, and 30 years since its entry into force. This has sparked renewed attention to the question of how the LOSC can continue to regulate new uses of, and threats to, our oceans. Some have sought to answer this question by framing the LOSC as a ‘constitution’ for the oceans, as a reassertion of its continued influence. This article shows that this provides a false sense of security. While the LOSC is one of the most impressive and significant treaties, it should not be regarded as a constitution. This article examines how the LOSC can remain an effective and enduring framework for the law of the sea, arguing that regarding it as a constitution does not necessarily contribute to that goal. Instead, it proposes a new approach to the treatment of the LOSC which attempts to explain how best it can serve as a ‘living treaty’ and as a framework that is truly capable of guiding legal responses to new opportunities and challenges at sea.

In the early stages of the COVID-19 pandemic, the treatment of cruise ships by coastal states was inconsistent, with some ships being allowed to dock while others were not. To that end, this Note focuses on the obligations that a coastal state owes to the individuals onboard the cruise ships in the context of the COVID-19 pandemic, including the rights to life and health. It further considers whether and how such rights are to be balanced with other countervailing considerations of such states, such as the risk of transmission to the local communities. This author concludes with the view that individuals onboard the cruise ships can, and should, consider turning to international human rights law for guidance and recourse. After all, the human rights regime is most suited for and accustomed to governing the relationship between individuals and a state, as compared to between states.