UNCLOS: the law of the sea in the 21st century
Chapter 1: Introduction
1.Around 71 per cent of the Earth’s surface is covered with water, with more than 96 per cent held in oceans. 80 per cent of the volume of international trade in goods is carried by sea, and at any one time there are more than 30 million people at sea.1
2.This year marks the 40th anniversary of the signing of the United Nations Convention on the Law of the Sea (UNCLOS). Commonly referred to as the ‘constitution of the oceans’, UNCLOS is one of the most widely ratified treaties, with 168 signatories including the United Kingdom and European Union. It sought to provide comprehensive governance of the world’s oceans and seas.
The development of UNCLOS
3.Before UNCLOS, the oceans were largely governed by the 17th century concept of the ‘freedom of the seas’. Coastal states had rights over a narrow band of territorial sea adjacent to their land, roughly equivalent to the distance a cannonball could be fired from the shore (hence the original territorial sea limit of three nautical miles), but all waters beyond this were considered international waters and all states could use and traverse them freely.
4.In the 20th century, states began to extend their jurisdiction over the sea. Some states, including the United States, Chile, Peru and Ecuador, extended their control to 200 nautical miles; others extended it to 12 nautical miles.
5.In the 1950s, negotiations began at the United Nations to try to standardise these claims. Professor Robin Churchill, Emeritus Professor of International Law at the University of Dundee, and Dr Jacques Hartmann, Reader in International Law at the University of Dundee, told us that the first United Nations Conference on the Law of the Sea, which began in 1956, was “unsuccessful in dealing with maritime zones” and “led to fears that technologically advanced States would arrogate large areas of the seabed to themselves.”2 The lack of standardised maritime entitlements led to disputes, including the UK-Iceland ‘cod wars’ between 1958 and 1976. Further conferences followed, and in 1982 UNCLOS was agreed, bringing an end to the “chaotic situation” in the post-war period.3 Box 1 shows a timeline of the development of UNCLOS.
Box 1: Timeline of the development of UNCLOS
|
6.UNCLOS has been signed by 167 states and the European Union. Non-signatories include Kazakhstan, Peru, Turkey, Turkmenistan, Uzbekistan and the United States. We heard that non-signatories are still bound by many of the provisions of UNCLOS, as they are now generally accepted as reflecting customary international law, to which all states must adhere.4
The structure of UNCLOS
7.Negotiations adopted a ‘package deal’ approach, according to which trade-offs were made between state delegations with the aim of achieving consensus and comprehensive coverage of key issues.
8.UNCLOS is a framework convention. This means that it sets out broad commitments and principles for parties, but leaves the setting of some specific commitments to subsequent international treaties or national legislation. For this reason, it is often referred to as the ‘constitution of the oceans’.5 Professor James Harrison, Professor of Environmental Law at the Edinburgh Law School, explained:
“UNCLOS has been described as an ‘umbrella’ convention, in the sense that it sets out the basic framework for states to exercise jurisdiction over most activities at sea, but it does not contain the detailed rules to govern those activities. Indeed, UNCLOS expressly calls for the negotiation of additional instruments through other international institutions to give effect to its provisions, particularly when it comes to fisheries, the protection of the marine environment and deep seabed mining.”6
9.UNCLOS refers to these international institutions as ‘competent international organizations’, and includes provisions for them to develop standards, regulations and treaties in specific areas. Figure 1 shows how some of these key organisations and treaties fit together under the UNCLOS umbrella. Three institutions—the International Seabed Authority, the Commission on the Limits of the Continental Shelf, and the International Tribunal on the Law of the Sea—were directly established by UNCLOS or its implementing agreements. Others existed prior to UNCLOS, or were established separately, but continue to play a role in developing the law of the sea.
10.An important competent organization is the International Maritime Organization (IMO), headquartered in London, which is tasked with developing rules and standards on shipping under UNCLOS. The history and role of the IMO is discussed further in Box 2.
Figure 1: Schematic showing how relevant international organisations and treaties relate to UNCLOS
Box 2: The International Maritime Organization
|
The IMO was formally established in 1948 at a UN conference in Geneva. Until 1982 it was known as the Inter-Governmental Maritime Consultative Organization. The IMO Convention entered into force in 1958. The organisation’s purpose was to “provide machinery for cooperation among Governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade; to encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation and prevention and control of marine pollution from ships”.7 The IMO develops international law in two ways. It can amend existing agreements, including those that had been developed before its establishment, or it can convene a conference to negotiate new conventions.8 To streamline the process for the former, it introduced a ‘tacit acceptance’ procedure, which means that an updated agreement will enter into force unless a specified number of states object to it before a certain date.9 This has proved to be effective.10 Proposals for new conventions or updates to existing ones can come from member states, the UN or its agencies, or intergovernmental bodies.11 An example of a convention the IMO has updated is the International Convention for the Safety of Life at Sea (SOLAS), which sets out minimum standards for the construction, equipment and operation of ships.12 The first version of SOLAS was adopted in 1914 after the Titanic disaster. It was then updated in 1929 and 1948, before the IMO updated it in 1960. Several further amendments have been made since. Other conventions adopted by the IMO include the International Convention for the Prevention of Pollution from Ships (MARPOL) in 1973 (updated via a Protocol in 1978), the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) in 1978 (updated in 1995 and 2010) and the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) in 1988 (updated via a Protocol in 2005). 175 states are party to the IMO. Professor Barnes, Professor of International Law at the University of Lincoln, told us that IMO agreements are “generally very well ratified and participated in by states” and that for some agreements, such as SOLAS and MARPOL, the level of ratification “represents about 95 per cent of world tonnage”.13 |
Key provisions
11.UNCLOS contains over 300 Articles, grouped into 17 Parts, and has nine Annexes. Its provisions concern a range of matters, from the right to conduct marine scientific research to the definition of warships. Two important sets of provisions relate to maritime zones and boundaries, and dispute settlement mechanisms.
Maritime zones and boundaries
12.UNCLOS clarified the breadth of the territorial sea, defined other maritime zones, and provided a new zone, putting an end to the “chaotic situation” in the first half of the 20th century.14 Maritime zones are generated by the coastal state’s territory (this includes, islands, rocks and low-tide elevations located within the state’s territorial sea). The breadth of maritime zones is measured from baselines drawn along the coast—UNCLOS provides the rules for these too. Where geographic circumstances mean that states’ maritime claims overlap, boundaries must be ‘delimited’. The affected states must try to come to an agreement between themselves first, but if they cannot, maritime boundary disputes can be resolved via judicial and non-judicial means, as laid out in UNCLOS.
13.The main maritime zones defined by UNCLOS are shown in Figure 2 and include:
- Internal waters: this includes the sea area landward of baselines in which the coastal state exercises sovereignty and where certain rights, such as the freedom of navigation, do not apply.
- Territorial sea: this extends to 12 nautical miles from the baseline. This area is under the jurisdiction of the state, but foreign vessels have the right to navigate through it (known as ‘innocent passage’).15
- Contiguous zone: this extends a further 12 nautical miles beyond the territorial sea. The state can enforce its laws on some specific matters (customs, taxation, immigration and pollution).
- Exclusive economic zone (EEZ): this extends 200 nautical miles from the baseline. The state has exclusive rights over natural resources.
- Continental shelf: a 200 nautical mile zone from the baseline where coastal states have the exclusive right to explore and exploit the resources of the seabed and subsoil. If the continental margin extends further than 200 nautical miles, the coastal state may be entitled to an extended continental shelf.
- The high seas: all parts of the sea that are not included in an EEZ, territorial sea, or internal or archipelagic waters of a state. They are open to all states, and states enjoy freedoms including the freedom of navigation, freedom of overflight, and freedom to lay submarine cables. No part of the high seas can be subject to claims of sovereignty.
- The ‘Area’: the seabed beyond the continental shelf. It is governed by the principle of the ‘common heritage of mankind’, according to which activities in the Area shall be carried out for the benefit of mankind as a whole. The International Seabed Authority was established in 1994 to provide for the equitable sharing of financial and other economic benefits derived from activities in the Area.
Figure 2: The main maritime zones defined by UNCLOS
Dispute settlement mechanisms
14.Part XV of UNCLOS provides states with four different fora to settle their disputes:
- The International Tribunal of the Law of the Sea (established by UNCLOS)
- The International Court of Justice
- An Arbitral Tribunal in accordance with Annex VII of UNCLOS
- A Special Arbitral Tribunal in accordance with Annex VIII of UNCLOS
15.States can also choose to settle disputes by other, non-judicial means, such as negotiation and regional agreements. Professor Edwin Egede, Professor of International Law and International Relations at the Cardiff University School of Law and Politics, told us that this range of options “provides … essential flexibility, encouraging states parties to seek peaceful resolution of conflicts rather than resorting to the use of force as an option.”16
16.Dispute settlement under UNCLOS is compulsory for signatories. Professor Douglas Guilfoyle, Associate Professor of International and Security Law at the University of New South Wales in Canberra, and Professor Natalie Klein, Professor at the Faculty of Law of the University of New South Wales in Sydney, told us that this was seen by many states as “providing a useful brake on the possibility of fragmented and diverse interpretations of the Convention’s provisions.”17 Professor Richard Barnes, Professor of International Law at the University of Lincoln, explained that it was also intended to “help less powerful states defend their legal interests against more powerful states” (though he added there is “very little evidence at the moment that states are using litigation to protect their interests in that way”).18
17.The compulsory nature of dispute settlement also reinforces compliance with UNCLOS. Professors Guilfoyle and Klein noted that it is likely that the threat of compulsory dispute settlement “moderates state decision-making and behaviour”.19
Our inquiry
18.In this inquiry we set out to determine whether UNCLOS remains fit for purpose—both for the international community and the UK—40 years after its negotiation. Our evidence was unequivocal in its praise for the many achievements of UNCLOS, and it is clear that the core tenets of the Convention remain as relevant today as they were 40 years ago.
19.Nevertheless, challenges that were not envisaged at the time of its negotiation, including rising sea levels and autonomous maritime vehicles, have brought UNCLOS, and its related treaties and institutions, into renewed focus. Other issues, including maritime security, human rights abuses at sea, biodiversity loss and environmental degradation have intensified, but it is not certain that UNCLOS and its related instruments provide all the tools necessary to address them. These challenges, and recommendations for how the UK can contribute to their solutions, will be the focus of this report.
This report
20.In Chapter 2 we evaluate the general achievements and weaknesses of UNCLOS, before outlining the mechanisms by which it could be updated or amended. In the remaining chapters we assess the extent to which UNCLOS is able to deal with five key challenges arising or intensifying in the 21st century. Chapter 3 addresses maritime security, Chapter 4 addresses climate change and the environment, Chapter 5 addresses human rights and labour protection at sea, Chapter 6 addresses maritime autonomous vehicles and Chapter 7 addresses the regulation of access to economic resources. In each chapter we discuss potential solutions to each of these challenges.
21.We thank our Specialist Adviser, Dr Reece Lewis, for his advice and expertise throughout this inquiry, and all our witnesses.
3 Written evidence from Professor Robin Churchill and Dr Jacques Hartmann (UNC0011). See also written evidence from Dr Montserrat Gorina-Ysern (UNC0020).
7 International Maritime Organization, ‘Brief History of IMO’: https://www.imo.org/en/About/HistoryOfIMO/Pages/Default.aspx [accessed 7 February 2022]
9 Ibid.
12 International Maritime Organization, ‘International Convention for the Safety of Life at Sea (SOLAS, 1974): https://www.imo.org/en/About/Conventions/Pages/International-Convention-for-the-Safety-of-Life-at-Sea-(SOLAS),-1974.aspx [accessed 7 February 2022]
15 All waters beyond the territorial seas are informally known as ‘international waters’, although this is not a defined term in UNCLOS. ‘International waters’ is a broader term than ‘the high seas’, as it includes contiguous zones and EEZs.