In the aftermath of the adoption of the Implementing Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdiction (BBNJ Agreement) and in view of the global target to protect at least 30 per cent of the ocean by 2030 (30×30), an issue that merits attention is the surveillance of marine protected areas (MPAs) on the high seas. The BBNJ Agreement is remarkably silent on how the relevant management measures in future MPAs will be implemented, despite the fact that enforcement challenges are prevalent in existing MPAs. This article discusses the potential use of maritime domain awareness (MDA) tools, including earth observation tools like satellites, in ensuring effective surveillance and subsequent enforcement of high seas MPAs. The article first introduces the concept of MDA and the use of earth observation tools in that context, highlighting the advantages that such tools may have in ensuring compliance in MPAs. It then explores the legal framework governing the employment of earth observation tools in high seas MPAs. The article argues that States are not merely permitted but also obligated to monitor their vessels’ activities in high seas MPAs. Furthermore, States are under a general obligation of cooperation, including the obligation to share information that is obtained by MDA tools. Finally, the article briefly discusses how evidence, like satellite imagery, could be used for enforcement purposes, including before domestic courts. It concludes that the use of earth observation tools would be instrumental to the effective surveillance and enforcement of high seas MPAs.

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.

This article compares China’s stance during the UNCLOS negotiations – the starting point of contemporary law of the sea, with its engagement in the latest development of negotiations on the United Nations agreement on biodiversity beyond national jurisdiction (BBNJ). It answers the question, how does China participate in these two important rules-making processes of the international law of the sea? By identifying salient positions China took in each set of lengthy negotiations and explaining the reasons behind, the article also aims to reflect what a rising China may bring to the international legal maritime order in the foreseeable future. The first part of this article, on the nature of China’s engagement in the UNCLOS negotiations, draws on archival study of official records of the UNCLOS III (1973–1982), as has been digitalized by the UN Office of Legal Affairs. The second part examines the period between the adoption of the UNCLOS (1982) and the start of the BBNJ process (2004), paying attention to China’s shifting practice towards the exploration and exploitation of the deep seabed mineral resources, and its concerns over the ratification of the UNCLOS and the 1995 FSA. Then the article focuses on China in the BBNJ negotiations – Working Groups, Preparatory Committee Meetings and Intergovernmental Conferences. Drawing upon the evolution of China’s positions over the past five decades, the article concludes with some insights on the likely future directions and implications of China’s engagement with the international law of the sea.

This article examines when states are allowed to use force against neutral merchant ships outside territorial waters. This is regulated by both international humanitarian law and the prohibition of the use of force, which apply concurrently to naval warfare. The prohibition of the use of force imposes narrower limits than international humanitarian law, in the sense that certain actions that have traditionally been permitted under international humanitarian law are contrary to the prohibition of the use of force. The prohibition of the use of force exempts uses of force based on UN Security Council resolutions, consent and self-defence. Where there is no UN Security Council resolution or consent, self-defence remains the only option, and self-defence does not give a right to direct the use of force towards third states or their ships. Therefore, the right to self-defence does not permit blockades outside territorial waters or visit and search operations that are not founded on specific suspicions against individual ships, even though such operations may be permitted under international humanitarian law. These conclusions are supported by an examination of state practice and opinio juris, where the few relevant instances that do exist have met with widespread protests from other states.

This study assesses China's approach to the global commons, those areas of the globe over which no state exercises sovereignty and that are accessible to all. Examining Chinese behaviour, official statements and expert positions towards the extant high seas and outer space regimes, this research concludes that China approaches the principle of international access to the two domains situationally, reflecting its assessment of how these regimes affect its national interests. The finding cautions against blanket characterizations of China's strategic orientation towards the global commons.

The eastern North Atlantic (ENA) has many highly productive areas where several species of cetaceans have been recorded, with the common dolphin (Delphinus delphis) being one of the most frequently sighted species. However, its spatial and temporal distribution in high seas is poorly known. The study presents the results from 5 years of cetacean monitoring in the ENA (2012–2016) aboard cargo ships that follow the routes from Continental Portugal to the Macaronesian archipelagos and north-west Africa. Common dolphin was the most frequently sighted cetacean with 192 occurrences registered on effort and an overall encounter rate of 0.36 sightings/100 nmi. The species was distributed in coastal and offshore waters, but absent from the Canaries and Cape Verde islands. Statistical ‘habitat’ models were developed to describe and explain the occurrence of sightings of the species: variables affecting detection of dolphins had a small impact and there were clear spatiotemporal distribution patterns, influenced to some degree by environmental variables. Predicted probability of occurrence was highest in coastal waters of continental Portugal and around the Azores. The models, combined with maps of distribution, were useful to identify important areas for the species, which could be the focus of future conservation efforts. Common dolphin presence was related to depth, distance to coast and seamounts, seabed slope, chlorophyll concentration, sea-surface temperature and sea level anomalies; the possible ecological significance of these relationships is explored.

The present article discusses the historical and theoretical parameters of the right of visit on the high seas. This right is considered the most significant exception to the fundamental principle of the freedom of the high seas, which is conceptualized mainly as of a negative nature, namely as ‘the prohibition of interference in peacetime by ships flying one national flag with ships flying the flag of other nationalities’. This prohibition is arguably challenged by the recent extensive practice of interdiction of vessels on the high seas to counter threats such as international terrorism and transnational organized crime at sea. Accordingly, the historical claims to the freedom of the seas and the celebrated controversy between mare liberum and mare clausum are canvassed. Drawing valuable insights from this historical survey, it is possible to revisit this controversy and ascertain the role of interference on the high seas in the legal order of the oceans of the twenty-first century. It is posited that the rationales behind the contemporary right of visit reflect the old-fashioned mare clausum arguments and that they fall under three general categories, namely the maintenance of international peace and security, the protection of the bon usage of the oceans, and the maintenance of welfare and ordre public of the states and of international society.

Jurisdiction — Territorial — Criminal Jurisdiction over Aliens — Crime Committed by Alien on Ship on High Seas — Jurisdiction of Courts of Flag State.

High Seas — Crime Committed Partly Aboard Merchant Vessel and Partly in the Sea — Whether Flag State Has Jurisdiction.

Jurisdiction — On the High Seas — Criminal Jurisdiction — Merchant Vessel — Manslaughter — Elements of Crime Occurring Partly on Board Ship and Partly in the Sea — Whether Courts of Flag State have Jurisdiction.