Chapter 2: Evaluating UNCLOS
Achievements and strengths
22.Witnesses agreed that the successful negotiation and entry into force of UNCLOS was a considerable achievement. Professor Sir Malcolm Evans, Professor of Public International Law at the University of Bristol told us:
“Possibly [UNCLOS’s] greatest achievement is that it is there … It was by no means a given that there would be a satisfactory outcome to what was a very long and protracted negotiation that attempted to do what, frankly, had never been done successfully before and has never been attempted since: to get all states of the world together around a table to produce a holistic, integrated convention that addressed virtually all the relevant issues at that time in a package-deal convention.”20
23.Professor Harrison said that the successful negotiation of UNCLOS was in part due to an emphasis on consensus decision making, and that “the need to maintain that consensus has been a key driver in developments in the law of the sea since the Convention was concluded.”21 Professor Egede agreed, noting a key reason for UNCLOS’s success was the “open-handed negotiations” at the third UN Conference on the Law of the Sea, which brought together “numerous developed and developing states, as well as a large number of non-state actors with various expertise relating to the law of the sea”.22
24.This emphasis on consensus has led to the widespread adoption of UNCLOS. Professor Churchill and Dr Hartmann noted that was not the case with the earlier Geneva Conventions, which were ratified by fewer than half of then-existing states.23 In turn, the widespread ratification of UNCLOS has ensured that many of its provisions reflect customary international law and are therefore binding on all states.24
25.We also heard that the framework nature of UNCLOS is a key strength. By delegating the development of specific regulations to competent organizations, it provides a basis for international law to develop over time without the need to amend UNCLOS itself.25 Sir Michael Wood told us that: “It is having regard to this potential flexibility that UNCLOS has sometimes been referred to as a ‘living treaty’.”26
26.The Foreign, Commonwealth and Development Office (FCDO) told us that “UNCLOS is a major achievement of diplomacy and international law making” and that the UK has benefitted from UNCLOS in “many ways”:
“Relying on the rules provided for in UNCLOS, the UK has agreed most of its maritime boundaries with neighbouring States. This provides clarity to the UK and other countries on the limits of our maritime zones and accompanying rights and duties as a coastal state. It also provides a legal framework to cooperate with our neighbours on resource management, scientific inquiry, tackling crime and protecting the environment. UNCLOS freedoms have enabled us to trade freely with many other countries and conduct marine scientific research around the globe.”27
27.The vast majority of witnesses considered that UNCLOS remains an important treaty, with widespread support from states, and there was agreement that it should not be renegotiated (see paragraph 42 for further discussion).28
28.Witnesses were also keen to stress the importance of viewing UNCLOS as an umbrella of related treaties and organisations, rather than a stand-alone treaty.29 Vaughan Lowe QC from Essex Court Chambers told us that UNCLOS’s purpose is to “establish the legal framework within which maritime activities take place” and “not to establish a detailed substantive regime governing the actual exercise of those activities.”30
Weaknesses and gaps
29.But there was widespread acknowledgement that some issues are not fully addressed in UNCLOS or under its umbrella. These include recent challenges and developments in maritime security (which is not defined in UNCLOS), biodiversity loss and environmental degradation, human rights and labour protections, and the regulation of access to economic resources, including on the seabed and in the water above it (the ‘water column’). There are also issues that were not yet a factor at the time of UNCLOS’s negotiation, including climate change and new technologies such as autonomous maritime vehicles. These issues are considered in the remaining chapters of the report.
Compliance and enforcement
30.An overarching issue discussed throughout our inquiry was that of compliance with and enforcement of the provisions of UNCLOS. Sir Michael told us that in general, “there is a high degree of compliance with the rules set forth in UNCLOS”.31 However we heard that when there are breaches, enforcement is a challenge due to the nature of international law. According to Professor Andrew Serdy, Professor of Public International Law and Ocean Governance at the University of Southampton, enforcement is a “weak point of all international law … which is marked by the absence of an international equivalent of a police force and the jurisdiction of international courts and tribunals being ultimately always founded on consent”.32 Professors Guilfoyle and Klein agreed, noting that “at the international level, constructing direct enforcement mechanisms is difficult.”33
31.If the dispute is at the state level, states can use one of the dispute settlement mechanisms outlined in paragraph 14. Professors Guilfoyle and Klein told us that “on many matters the dispute settlement system routinely works” and “the great majority of maritime boundary awards are complied with”.34 Professor Serdy noted that the low number of disputes since UNCLOS entered into force suggests that its rules are “for the most part clear and realistic enough not to generate disputes at all”.35
32.Professor Barnes also noted that the framework nature of UNCLOS means that “not all disputes have to be settled”; they can instead be “managed”, for example by “interim arrangements whereby states agree not to engage in certain activities”. He told us that “as long as the dispute itself is not blowing out of all proportion” states may decide they do not need to use the dispute settlement mechanisms.36
33.But there have been occasions where states have refused to engage in the arbitration process or follow the resulting judgment or award. In 2013, the Philippines brought a case against China over its activities in the South China Sea. The case was heard by an Arbitral Tribunal under Annex VII of UNCLOS and in 2016 it ruled in favour of the Philippines. China, despite being a signatory to UNCLOS, did not engage with the proceedings and has not accepted the ruling. Professor Harrison said that refusal by states to engage undermines the dispute settlement process and “directly threaten[s] the ability of UNCLOS to provide a stable legal framework for the oceans”.37
34.We heard of an increasing trend towards using UNCLOS arbitration processes for issues which are potentially outside of the scope of the Convention. Professor Harrison gave the example of the 2015 Chagos Marine Protected Area Arbitration, where Mauritius initiated proceedings against the UK over its establishment of a Marine Protected Area (MPA) around the Chagos archipelago.38 The Tribunal found that the UK had “failed to comply with its UNCLOS obligations” by not consulting Mauritius before declaring the MPA. However, Professor Harrison thought that this finding was based on a:
“broad reading of Article 2(3) of the Convention, which potentially allows disputes about other international rules to be determined through UNCLOS dispute settlement procedures if they related to maritime boundaries, even if states have not otherwise agreed to the settlement of disputes concerning those rules.”
He thought that such cases “raise serious questions about the scope of jurisdiction under the compulsory system of dispute settlement established by UNCLOS” and that a drawback of this “expansive view” is that states may become increasingly cautious about accepting compulsory jurisdiction clauses in international conventions.39
35.We heard that the range of fora in which states can choose to settle disputes may also lead to “forum shopping” in order to secure the desired judgment. Dr Masimo Lando, Assistant Professor at the School of Law at the City University of Hong Kong, and Dr Niccolò Ridi, Lecturer in Public International Law at King’s College London’s Dickson Poon School of Law, told us that this can lead to “conflicting decisions” which in turn might lead to “a progression ‘fragmentation’ of international law”.40
36.The formal dispute settlement mechanisms provided for in UNCLOS are also not applicable to breaches of law carried out by non-state actors (which we heard constitute the majority of breaches)41 or which affect non-state actors. In such instances, UNCLOS and its related treaties rely on direct enforcement by individual states, depending on where the breach took place.
37.This poses a particular problem on the high seas, which are beyond the direct jurisdiction of any state. UNCLOS attempts to address this by giving flag states (the state where a vessel is registered) jurisdiction over ships flying its flag in the high seas. This is known as ‘exclusive flag state jurisdiction’. The flag state alone has jurisdiction over the vessel (apart from in certain, exceptional circumstances, including the right of visit in Article 11042) and is responsible for enforcing international laws and regulations, such as those set out by the International Maritime Organization and the International Labour Organization.
38.Flag states have a number of obligations, as set out in Article 94 of UNCLOS. These include a duty to ensure the effective exercise of its jurisdiction relating to, for instance, administrative, technical and social matters including labour conditions, ensuring safety at sea and the seaworthiness of the vessel.
39.In practice, however, abuses of the system have compounded the problem of enforcement on the high seas and led to what Professor Anna Petrig, Chair of International Law and Public Law at the University of Basel, termed a “jurisdictional vacuum”.43 This is because a proportion of ships are registered with ‘flags of convenience’—states with limited domestic regulation in areas such as pollution, labour protection, and taxation, and which have ‘open registries’, allowing foreign vessels to use their flag with few conditions. Examples of flags of convenience include Panama, Liberia, and the Marshall Islands, which together represent the top three flag states by gross tonnage (see Table 1).44 Professor Evans told us this has led to a situation where it is easy to register a vessel in a country “that will not take its obligations as a flag state seriously” and which “have no meaningful capacity” to enforce regulations on the high seas.45
Table 1: Flag states by gross tonnage as of end of year 2020 (top ten, UK and US)
Rank |
Flag state |
Gross tonnage (millions) |
|
1 |
Panama |
221.5 |
|
2 |
Liberia |
181.5 |
|
3 |
Marshall Islands |
161.2 |
|
4 |
Hong Kong |
129.7 |
|
5 |
Singapore |
87.1 |
|
6 |
Malta |
81.0 |
|
7 |
China |
56.7 |
|
8 |
Bahamas |
54.0 |
|
9 |
Greece |
37.5 |
|
10 |
Japan |
27.8 |
|
20 |
United States |
10.0 |
|
22 |
United Kingdom |
8.7 |
Source: Department for Transport, ‘Shipping fleet statistics: 2020’, 10 March 2021: https://www.gov.uk/government/statistics/shipping-fleet-statistics-2020 [accessed 7 February 2022]
40.The jurisdictional vacuum created by exclusive flag state jurisdiction and flags of convenience is a particular challenge facing maritime security and the protection of human rights at sea, and will be discussed further in Chapters 3 and 5 respectively.
41.Enforcement is a weakness of international law, and is a particular challenge on the high seas. While UNCLOS attempts to address this via the use of flag states, issues related to enforcement capacity and the widespread use of flags of convenience has led to a jurisdictional vacuum on the high seas.
Updating, supplementing or amending UNCLOS
42.Given the modern challenges facing UNCLOS, we asked witnesses whether it should be renegotiated. All witnesses responded that UNCLOS could not or should not be renegotiated. A key reason given was that renegotiation risks the dilution of current provisions, which could threaten the UK’s interests. Professor Evans explained that states would have to make “trade-offs and concessions in all possible directions” and so it would be a “high-risk strategy.”46 Professor Irini Papanicolopulu, Associate Professor of International Law at the University of Milano-Bicoccia, and colleagues noted that renegotiation “could be used by new powers to upset the delicate balance of powers of coastal and other states reached in 1982, creating insecurity concerning the exercise of powers.”47
43.The Government agreed, telling us that: “Attempting to renegotiate UNCLOS … risks undoing the careful balance struck in the existing text as well as many of the benefits we currently enjoy.”48
44.Nevertheless, there was optimism among witnesses that UNCLOS is sufficiently flexible to allow for its enhancement in other ways. Indeed, we were told that as a framework convention, UNCLOS is designed to be adaptable to modern circumstances. Dr Sofia Galani, Assistant Professor in Public International Law at Panteion University, told us that modern challenges do not render UNCLOS “totally helpless” as “UNCLOS is a living treaty: it allows us to interpret the provisions in the light of new realities.”49
45.There was little appetite for using UNCLOS’s formal amendment processes (provided for in Articles 312–314) to update its provisions. Professor Churchill and Dr Hartmann told us these procedures are “too cumbersome to be useful”. Hayley Keen and Charlotte Nichol told us that while Article 313 attempts to provide a ‘simplified procedure’ for amending the convention, it is not practical as it “enables a single State Party to veto a proposed amendment”.50 They also highlighted that formal amendments are not binding on states which do not formally accept them, which “risks fragmenting adherence” to UNCLOS.51
46.Professor Serdy told us that an alternative to formal amendment of UNCLOS is to make better use of the annual meetings of States Parties to UNCLOS (SPLOS) as “many UNCLOS-related issues can be resolved by achieving agreement among its parties on the interpretation of the existing text rather than seeking to renegotiate it.”52 However, the current position of many states, including the UK, is that these meetings have “no authority to discuss matters of substance”.53 Professor Serdy told us this is incorrect and that “there is nothing to stop the parties gathered at such meetings from discussing whatever they wish”. He recommended that the UK revises its position on the lack of authority of SPLOS.54 The Ocean Law Specialist Group of the World Commission for Environmental Law and the International Union for Conservation of Nature also advocated for a “revitalised” SPLOS, saying that: “Regular meetings of States Parties are widely considered to be an essential tool for ‘living’ agreements, as otherwise they may become moribund and unable to adapt to changing circumstances”.55
47.For substantial or complex issues where more formal agreement is required, witnesses advocated for implementing agreements. These are new agreements that relate to some of the existing provisions of a convention. To date there have been two implementing agreements to UNCLOS (see Box 1).
48.Witnesses noted that while implementing agreements should, theoretically, implement existing provisions in a treaty, in reality they can be used to modify it or change it completely. Professor Evans told us that the first implementing agreement “threw out the existing Part XI of the convention on the deep seabed and more or less rewrote it”.56
49.Negotiations are currently underway to agree a third implementing agreement, which would enhance the provisions in Part XII of UNCLOS on the protection of marine biodiversity in areas beyond national jurisdiction (known as the ‘BBNJ agreement’). Joanna Szuminska highlighted that in contrast to the first two implementing agreements, these new provisions would be “truly implementing” the existing provisions of UNCLOS.57 This agreement will be discussed further in Chapter 4.
50.The provisions of UNCLOS can also be enhanced through new treaties or regulations negotiated by competent international organizations, such as the IMO, and on a bilateral or multilateral level by agreements between states.
51.Professor Klein told us that there are “many informal agreements operating as part of ocean governance”, such as the Food and Agriculture Organizations Code of Conduct for Responsible Fisheries, and the IMO Guidelines on the Treatment of Persons Rescued at Sea.58 Benefits of informal agreements include faster negotiation, increased willingness by states to engage as there is “less concern about enforcement and legal consequences”, and the possibility for greater involvement of non-state actors. There are also disadvantages—Professor Klein notes they are “unlikely to contribute to the development of customary international law”, as they are not intended to be legally binding. They could also undermine existing, formal law, by providing lower standards.
52.There was agreement that the choice of mechanism to amend, update or supplement UNCLOS would depend on the issue under consideration. The remaining chapters of this report consider the key challenges to the provisions of UNCLOS, and recommend mechanisms which could be used to tackle them.
53.The signing of UNCLOS in 1982 was a fundamental step forward for the governance of the oceans. It has been largely successful, and despite the shortcomings explored later in this report, any renegotiation would be dangerous. However, it is clear that in light of its gaps and modern challenges, including human rights at sea, rising sea levels, new technologies and the quest for ever more resource, its provisions need updating and supplementing. It will be important to do this in a way which does not undermine the convention.
54.The Government should use its influence and voice within the International Maritime Organization to explore ways it can update and amend the existing law to address concerns, including maritime autonomous vehicles and human rights at sea.
55.The UK should reconsider its position that annual meetings of the States Parties to UNCLOS are not an appropriate forum to discuss substantive issues. There is scope for these meetings to be used to come to agreement amongst states on the interpretation of UNCLOS’s provisions in the light of emerging challenges. To make the most of this, the UK must ensure it invests in preparatory diplomacy and engagement with likeminded states.
The UK’s role and influence
56.We heard that the UK is an important international player in the law of the sea. Professor Steven Haines, Professor of Public International Law at the University of Greenwich, told us that the UK is one of the “top five” maritime powers and in a “very good position to lead on a number of things”.59
57.The FCDO agreed, telling us the UK is already a key player in several matters relating to the law of the sea:
“The UK regularly engages with a range of partners bilaterally, multilaterally and in small groups on UNCLOS issues. We hold law-of-the-sea dialogues with a number of countries. The UK has representation in all the main relevant international bodies, including the IMO, ISA, IOC and International Hydrographic Office (IHO). We are active in the annual UN General Assembly discussions on the Law of the Sea. The UK is also active in discussions on maritime security in the Security Council [and] continues to actively support the work of the IMO and is a leading voice in all discussions.”60
58.Nevertheless, we heard there are ways the UK can increase its influence. Judge David H. Anderson, a former judge on the International Tribunal for the Law of the Sea, told us that while the UK is represented on the International Seabed Authority—one of the three international bodies created by UNCLOS—it has not had a judge on ITLOS since he retired in 2005.61 Professor Evans said that this “does not send a good signal” and suggests that the UK is “perhaps … deprived of knowledge and of a source of understanding of the way trends develop in this area.”62
59.The UK, with its strong maritime interests and history, should take on a global leadership role in developing and enforcing the law of sea. The Government should increase its engagement with states and other actors especially in developing areas of the law of the sea, such as human rights at sea, climate change and new maritime technologies. The Government should assist initiatives that further this aim, especially those with connections to the UK.
60.The Government should aim to increase the presence of British judges on institutions like ITLOS, and British personnel in roles in related international institutions. This will show that the UK is committed to upholding the provisions of UNCLOS and the international rule of law.
20 Q 10 (Professor Sir Malcolm Evans). See also written evidence from Professor Edwin Egede (UNC0006) and Professor James Harrison (UNC0010).
30 Written evidence from Vaughan Lowe QC (UNC0046). See also written evidence from Professor Robin Churchill and Dr Jacques Hartmann (UNC0011).
36 Q 86 (Professor Richard Barnes). See also written evidence from Professor James Harrison (UN0010).
38 Permanent Court of Arbitration, ‘Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom)’: https://pca-cpa.org/en/cases/11/ [accessed 7 February 2022]
39 Written evidence from Professor James Harrison (UNC0010). In his evidence, Professor Harrison quoted the following article: Alan Boyle and James Harrison, ‘Judicial Settlement of International Environmental Disputes: Current Problems’, Journal of International Dispute Settlementm vol. 4(2), (2013), pp 245–276: https://academic.oup.com/jids/article-abstract/4/2/245/993289 [accessed 7 February 2022]
42 Q 38 (Cdr Caroline Tuckett). Article 110 of UNCLOS states that a warship is “not justified in boarding” a foreign ship encountered on the high seas, unless there is “reasonable ground for suspecting” that the ship is (a) engaged in piracy; (b) engaged in the slave trade; (c) engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109; (d) without nationality; or (e) of the same nationality as the warship (even if flying a foreign flag or refusing to show its flag). In these cases, the warship may “proceed to verify the ship’s right to fly its flag”, including through sending a boat and undertaking an examination of the ship.”
44 As defined by the International Transport Workers’ Federation Fair Practices Committee: International Transport Workers’ Federation, ‘Flags of convenience’: https://www.itfglobal.org/en/sector/seafarers/flags-of-convenience [accessed 7 February 2022]
47 Written evidence from Professor Irini Papanicolopulu, Andrea Longo and Daniele Mandrioli (UNC0033)
51 Ibid.
53 Ibid.
54 Ibid.
55 Written evidence from the Ocean Law Specialist Group, World Commission for Environmental Law and International Union for Conservation of Nature (UNC0042)