17 Mar UK House of Lords UNCLOS Inquiry: A Significant Intervention
[Reece Lewis is Lecturer in Law at Cardiff University.]
This year marks 40 years since the United Nations Convention on the Law of the Sea (UNCLOS) was opened for signature. This landmark provides an opportunity to reflect on its achievements and challenges it faces today. Leading the way is the Report by the UK House of Lords International Relations and Defence Select Committee, entitled “UNCLOS: the Law of the Sea in the 21st Century”—published 1 March 2022. The Inquiry sought to examine whether UNCLOS remains fit for purpose in the 21st Century. I had the privilege of serving as the Specialist Adviser for the Inquiry. I am writing this post strictly in my personal capacity and the views represented here are entirely my own and not the Committee’s.
The Report is primarily directed to the UK Government, but it has wider international significance. Rather than reproducing its conclusions, this post attempts to situate the Report within the broader question whether, 40 years-on, UNCLOS remains an effective basis for the governance of the sea. This post identifies some of the Report’s key contributions to this debate. But I also raise the broader question whether the Report adds to the increasingly elephant-shaped presence that is now in the room: perhaps UNCLOS is becoming part of the problem? UNCLOS inevitably reflected the concerns of the time it was drafted and many of these remain as important today. But it is becoming increasingly apparent that we require solutions beyond UNCLOS, and we might sometimes need to circumvent it, in order to adequately address the concerns of our time.
A Selection of the Report’s Key Contributions
The Report helpfully identifies two sets of challenges facing UNCLOS today. On the one hand, are new challenges: these are problems and gaps which UNCLOS does not address and have emerged since it was concluded. Among these, the Report considers the effects of climate change including rising sea-levels and ecological damage in Chapter 4; new maritime technologies such as maritime autonomous vehicles (MAVs) in Chapter 6; and new economic uses of the seas in Chapter 7. On the other hand, it identifies those challenges which were known at the time the Convention was adopted but which have, in the time since, either worsened or receive greater attention nowadays. The Report examines the problem of non-compliance with UNCLOS and the issues associated with exclusive flag state jurisdiction in Chapter 2; intransigent maritime security challenges are the focus of Chapter 3; concerns for the maritime environment in Chapter 4; and human rights at sea in Chapter 5.
Sea-level rise profoundly challenges the law of the sea, especially the law of baselines and boundaries. Must baselines shift with rising seas or do they ambulate with it? The Convention’s provisions on baselines concerning baselines are not exactly helpful and leave it relatively open for diverse answers to this question. Without updating these provisions, states will need (and in fact are beginning) to work beyond UNCLOS to adequately respond to this challenge. A sensible approach is needed to prevent compounding the problem—and one faced most urgently by those least likely to have contributed to it, but are more likely to suffer from it. The Report identifies the Pacific Island Forum’s baseline strategy as an example of a sensible approach: freeze maritime baselines and boundaries as they currently exist. The UK Government is still “considering” its response to this proposal. Nevertheless, the Report adds to the growing calls for states to adopt a more pragmatic approach to stabilise their boundaries and baselines.
The Report also identifies many legal complexities concerning jurisdiction over, and the use of, MAVs. They offer new opportunities for states, including safer investigative and enforcement uses (e.g., sea-mine clearing and seabed surveying). But just as they offer new opportunities for legitimate activities, they do so for illicit use too (e.g., substance smuggling operations and terrorist activity). The Report underlines the growing awareness that UNCLOS and IMO treaties do not easily accommodate MAVs and that this needs to change. The IMO is currently engaged on work leading to the amendment of its treaties and it is developing a new code for MAVs, expected in 2028. The Report importantly stresses that in the time until then, both the technology and state practice will likely evolve.
It is my view that mere amendment of technical treaties and the updating of certain definitions, including within UNCLOS, will not be enough. There is a fundamental problem of a lack of clarity of accountability and responsibility. The prospect of an MAV being located inside one state’s jurisdiction, flagged by another state and remotely operated from another state still (and possibly by non-state actors), is very likely. This raises a host of complexities. Which state can exercise jurisdiction over the MAV, or its operator? It also raises issues of accountability: who is to blame and how might states determine this? Are MAVs entitled to the right of innocent passage: does the level of autonomy of the MAV matter? The Report further emphasises the pressing need for a bespoke and clear legal solution to address these questions—coastal state’s maritime security interests demand it. Once again, we are relying upon mechanisms to be developed outside UNCLOS.
An important theme of the Report is the need for states to cooperate more effectively to suppress illegality at sea. It stresses the need for states (including the UK) to engage in capacity-building activities to assist other states in dealing with maritime security threats, such as piracy and armed robbery at sea. Importantly, the Report also calls for better cooperation among states to tackle illegal, unreported and unregulated fishing. These are all rather important observations and emphasise the view that to defeat the self-fulfilling cycle of maritime crime with its associated environmental degradation and exacerbation of poverty, better international cooperation with a view to the development of the enforcement capacity of states is required.
The Report focusses on the problems associated with the principle of exclusive flag state jurisdiction and the endemic use of flags of convenience. This is at the heart of many of the problems facing ocean governance today. It results in weak standards relating to the conditions of seafarers, the maritime environment and overfishing, for instance. It also results in weak enforcement of the law. Flags of convenience simply do not take their responsibilities seriously and do not have the capacity to enforce what little standards and regulations they have over vessels flying their flag. All of this arises, frustratingly, precisely because of the way UNCLOS devises jurisdiction. The Report emphasises the need to strengthen the requirement for a genuine link between the flag state and the vessel— as an example, it points to the 1986 Convention on Conditions for Registration of Ships. Again, the solution appears to be working outside of the Convention to try to ameliorate the problematic legal architecture it established.
Perhaps the Report’s most important, and hopefully consequential, contribution is its considerations and recommendations concerning human rights at sea. It clarifies that human rights apply at sea. It urges states to address the challenges associated with their protection and enforcement. UNCLOS itself does not speak to human rights but some IMO treaties concern seafarer’s conditions aboard vessels. The Report makes significant critical observations of the present state of the law and calls upon states to work together to provide better means for the application of international human rights law in the maritime context. In particular, it calls on states to provide means for the enforcement and monitoring of human rights abuses at sea, and calls on the UK to acknowledge the variety of contexts in which human rights law applies—not only labour conditions of seafarers. While ambitious, it is important for states to recognise the Committee’s insistence that “piecemeal solutions will not be sufficient” to this problem. Hence it calls on the UK to “work with likeminded partners to advance a unified approach to human rights at sea” and that “this will need to draw together practical solutions to challenges including mass migration, forced labour, physical and sexual crimes, and crimes committed by privately contracted armed security personnel, and must lead to the creation of new mechanisms to address the issue.” In my view, the Committee are absolutely correct here. Once more, this requires solutions beyond UNCLOS. In fact, the Convention’s zonal approach, freedom of the high seas and exclusive flag state jurisdiction currently limit human rights protection. For instance, an abuse of human rights aboard a vessel is currently not recognised as a reason on its own to subject that vessel to the enforcement jurisdiction of another state, likewise, it would not be sufficient reason to suspend innocent passage. No amount of refining UNCLOS can adequately address this issue.
The Elephant In The Room
The Report repeats the received wisdom that UNCLOS will simply not be amended or renegotiated. There are good reasons not to reopen the Convention for fear of diluting or even losing some of its important tenets concerning navigational rights and freedoms and the stability provided by shared rules on state jurisdiction. The Committee and the Report are right to conclude that UNCLOS remains an important cornerstone of the international legal order.
It was always anticipated that the Convention would need further supplementing as new issues emerged. But what is becoming apparent is that we are increasingly reliant on mechanisms which find no immediate basis within UNCLOS to address these concerns. Indeed, many of the ‘success stories’ related to maritime security in recent times required innovative solutions beyond the confines of the Convention—such as Operation Atalanta, which involved a re-imagining of the rules of piracy, or maritime security treaties which circumvent exclusive flag state jurisdiction (e.g., shiprider agreements or presumed authorisation treaties). Of all the points identified above (the Report details many others too), it appears the solution is to provide for further mechanisms which will need to be developed beyond the Convention. Human rights, MAVs, climate change and its effects, will need to be addressed through further means (other treaties, IMO conventions, court and arbitral awards, or other sources of guidance).
In responding to some of these new challenges, UNCLOS will and should remain influential. For instance, while it might not be possible to freeze baselines nor introduce a regime governing MAVs within the Convention, its principles and rationales should nevertheless influence these developments—such as the need to ensure stability and certainty of boundaries and the apportionment of responsibility of the operator and flag of a MAV.
But here’s the rub: many of the problems (new and old) that the Report identifies are compounded by UNCLOS. We might not actually want its principles to apply in all contexts. A fundamental principle that the Convention sought to apply to the maritime domain was “freedom but with responsibility”. Nowadays, it seems that we are increasingly reliant on working outside of the Convention to adequately flesh out these responsibilities at sea and many of these innovations need to circumvent the Convention’s fundamental principles which often pull in the opposite direction. The way that UNCLOS devises jurisdiction with its obsession with maritime zones, the freedom of the high seas and the principle of exclusive flag state jurisdiction, challenges the good order of the oceans. Its apportionment of jurisdiction along the bases of distance and economic interests, confuses responsibility and accountability of action at sea in other contexts. This means that human rights abuses and illegal activity often goes unpunished, unreported and it leaves victims without adequate means of recourse.
We should always caution against throwing the baby out with the bath water. But the Report recognises that unless the Convention is supplemented to address these challenges, it will no longer be fit for purpose. I will go further, new concerns and expectations of the law of the sea reveal an inherent tension: paradoxically what ensures the Convention remains fit for purpose in some contexts (freedoms, zones and flags, for instance), hinders action in other areas we now recognise as crying out for development.