In conversation with Lawyers Weekly, Macquarie School of Law international law lecturer and deputy director of the Centre of Environmental Law (CEL) Dr Constantinos Yiallourides said that because the world’s oceans and seas cover five-sevenths of the planet’s surface, they form an “invaluable global resource with considerable economic, political, strategic, and social implications”.

“The law of the sea encompasses the international legal framework governing all types of maritime activities across oceans and seas, including, among others, navigation, the exploration and exploitation of resources, the preservation of marine ecosystems, the installation of offshore cables and pipelines, and marine scientific research,” he explained.

“The geographical scope of the law of the sea extends beyond the maritime domain: it also applies to land-based activities that may adversely impact the marine environment. For example, it will apply to a nuclear facility on shore which disposes of nuclear waste into the sea due to the waste’s potential harmful effects on the marine environment.

“It will also apply to a project which captures the greenhouse emissions of a cement factory and transports them for storage in deep-sea locations offshore. Thus, the application of this area of law can span the entire planet, not merely the five-sevenths covered by water.”

This type of law is “dynamic and evolutionary” — and has evolved in line with technological developments and increasing human presence in oceans and seas.

“The law of the sea has rightly been referred to as a living law because of this all-encompassing scope and flexibility. Its meaning and function are not set in stone. It evolves with relevant changes in both law and facts. Dynamism and change, including through interpretation and application of the relevant laws by courts and tribunals, are imperative to ensure the law of the sea maintains the necessary resilience and avoids obsolescence under changing world conditions,” Dr Yiallourides added.

“A prime example of this ‘legal foresight’ is the 1982 United Nations (‘UN’) Convention on the Law of the Sea (known as ‘UNCLOS’). UNCLOS specifies that a coastal state has sovereign rights in its exclusive economic zone to, first, explore, exploit, conserve, and manage all seabed energy resources, and second, preside over other ‘activities for the economic exploitation and exploration of the zone’. Such activities include ‘the production of energy from water, currents, and winds’.

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“Interestingly, offshore wind energy projects did not exist when UNCLOS was being negotiated and drafted. However, its drafters had an eye on the future. They considered what might happen and provided for these eventualities in the law. In this instance, their predictions proved accurate.”

There are also a number of key developments within this space likely to have major legal implications, such as overfishing, deep-sea mining, autonomous maritime vessels, boundary disputes, maritime migration, human rights abuses at sea, biodiversity loss, and environmental degradation.

But according to Dr Yiallourides, the “shared or common interests and responsibilities of states in responding to these issues are becoming increasingly salient”.

“Responding to perceived novel risks requires the interaction of law, science, and technology as these risks evolve. Changes in context, in turn, create significant demands for change in the law now and in the foreseeable future,” he added.

“The law of the sea is often referred to as a ‘constitution for the oceans’, but its resilience depends on its ability to adapt and mediate change. This is why the work of lawyers, policymakers, judges, and scholars of the law of the sea is crucially important in interpreting and applying the law in the modern context and under changing world conditions.”

One recent notable development, added Dr Yiallourides, is the world turning to international courts and tribunals to assist with the negative effects of climate change in the world’s oceans, including ocean warming, rising sea levels, and ocean acidification.

In a landmark decision in September 2022, the UN Human Rights Committee determined that the Australian government’s failure to protect Indigenous Torres Strait Islanders from the detrimental impacts of climate change violated their rights to preserve their culture.

“On occasion, international courts and tribunals have adopted an evolutionary approach to interpreting the law of the sea in response to new and complex changing maritime circumstances. The law of the sea provides the tools to respond, adapt, and mediate this demand for change in the oceans and seas,” Dr Yiallourides said.

For instance, UNCLOS already contains a range of due diligence provisions to prevent and reduce marine environment pollution from various sources. The general obligation under UNCLOS to protect the marine environment covers pollution and harm from “any source”, including “from or through the atmosphere”. Thus, climate change-related impacts on the marine environment are already regulated under UNCLOS, a legally binding instrument of universal application.

The law of the sea can thus serve as a means to evaluate state actions, both domestically and internationally, against the standards they have agreed to, and potentially to encourage further efforts to address the impacts of climate change, in line with the general obligation to protect the marine environment.

Climate change litigation is increasingly gaining importance as a way to promote climate change-related objectives or to challenge the way in which climate policy is implemented.

“Lawyers can use the law to support climate action and challenge climate policy design and implementation. Conversely, lawyers can also use the law to dissuade policymakers from imposing stricter measures on private corporations responsible for greenhouse gas emissions,” Dr Yiallourides added.

“Climate change litigation is increasingly used to enforce or strengthen governments’ climate commitments. At least 73 cases challenge a state’s overall response to climate change. Several cases were filed last year alone against fossil fuel companies. Corporations in the food and agriculture, transport, plastics, and finance sectors have also faced climate-related litigation.”

This is encompassed in what Dr Yiallourides teaches his students in a unit that examines modern ocean governance issues, including legal and technical rules governing maritime boundary delimitation and offshore energy development, marine resource conservation and fisheries, seabed mining, marine genetic resources, principles of marine environmental law, approaches to climate change in the oceans, and the rules and procedures for the peaceful settlement of maritime disputes.

Here, law students analyse real-life examples, current problems and challenges, and ongoing disputes using the general principles, rules, and procedures of international law — and the unit is something Dr Yiallourides said is becoming increasingly popular amid the climate crisis.

“The law of the sea is an increasingly popular subject among students. There is a growing recognition of the critical role that the law of the sea can play in addressing climate change and achieving sustainable development in the world’s oceans and seas.

“There is also growing awareness of the critical role that the law of the sea can play in maintaining consistency across states and economic activities with a transboundary element, including the potential need for domestic legislative changes. This recognition is evident in the increasing emphasis placed on environmental sustainability in both international agreements and national legislations,” he added.

“The law of the sea is also inherently cross-disciplinary, which makes it appealing to students of diverse backgrounds and interests, such as international relations, environmental and marine sciences, and humanities, among others. Students are also drawn to this area because it is wide-spanning and practical and, thus, can enhance career prospects across many fields, both domestically and internationally.”