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UNCLOS: the law of the sea in the 21st century Contents

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Chapter 7: Regulation of access to economic resources

267.One of the priorities of UNCLOS was to establish a comprehensive regime to govern all uses of the ocean’s resources, including living resources (such as fisheries) and non-living resources (such as oil and gas).357

Rights within the exclusive economic zone

268.States have exclusive rights to “explore, exploit, conserve and manage” natural resources in its exclusive economic zone (EEZ), the area which extends 200 nautical miles from the baseline and includes the states territorial seas and contiguous zones.358 Dr Caddell told us that states “also have sovereign rights over other economic benefits, such as energy production”.359 He said that the right to resources in the EEZ was “probably one of the most significant elements of state claims”, as while only around 36 per cent of the oceans are covered by EEZs, they contain around “90 per cent of … harvestable resources”.360 States also have exclusive rights for exploring and exploiting natural resources on its continental shelf, which in some instances can extend beyond the EEZ.

Overlapping claims to sovereignty and jurisdiction

269.The situation is less straightforward where there are overlapping claims to sovereignty and jurisdiction. Dr van Logchem told us that there are around 200 maritime boundaries that still need to be delimited.361 In these areas there may be “multiple states that claim to have jurisdiction, sovereignty or sovereign rights”.362 An example of this is the dispute between China and Philippines in the South China Sea, outlined in Chapter 3.

270.Article 15 of UNCLOS explains how states should deal with overlapping claims to territorial sea:

“Neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured”.

The only exception to this provision is where historic titles or “other special circumstances” apply, which allow for the delimitation the territorial seas in a different way.363

271.Articles 74(3) and 83(3) and UNCLOS make provisions for overlapping claims to the EEZ and continental shelf. Both state that: “The States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement”.364

272.However, Professor Churchill and Dr Hartmann described these provisions as “almost empty”, as a result of compromises that were required when UNCLOS was drafted.365

273.Where states cannot agree boundaries according to the above provisions, they can resort to the dispute settlement procedures outlined in Part XV of UNCLOS. Professors Guilfoyle and Klein told us that “the great majority of maritime boundary awards are complied with”.366 However, as the Philippines/China arbitration highlights, sometimes states do not engage with or abide by the findings of tribunals.

274.Another area of potential dispute is the Arctic, where climate change and ice-melt has increased the potential access to resources in the Arctic Ocean. Professor Schofield felt that so far states are “playing by the rules” of UNCLOS when it comes to making claims to continental shelf rights, and noted that all Arctic coastal states which are parties to UNCLOS have submitted relevant documents to the Commission on the Limits of the Continental Shelf.367

275.However, Professor Schofield highlighted that there have not yet been determinations on the outer limits of the continental shelf claims of Russia, Denmark (on behalf of Greenland) and Canada, which could be contentious.368 He added that the Commission on the Limits of the Continental Shelf “does not have the mandate to determine or settle disputes”, and so if there were overlapping claims, states would need to resort to dispute settlement”.369

276.Where there are overlapping claims to territorial seas and exclusive economic zones, UNCLOS includes provisions for delimiting them, but these were the result of considerable compromise and in reality, they are vague. Nonetheless, the majority of maritime boundaries between states have been agreed. In some instances where agreement has not been reached, dispute settlement is needed, but as the 2013 arbitration brought by the Philippines against China shows, states may not cooperate with the findings of dispute settlement mechanisms. This repeats the need for states to engage in dialogue with each other and work together to resolve difficulties peacefully.

Areas beyond national jurisdiction

277.The area beyond the limits of national jurisdiction covers about 54 per cent of the total area of the world’s oceans.370 In this area, the right for states to access resources varies depending on whether they are living or non-living resources, or whether they are on the deep seabed (referred to in UNCLOS as ‘the Area’) or in the water column (that is, the high seas).

Non-living resources on the deep seabed

278.Access to non-living resources has always been a key motivation behind states’ interest in the deep seabed. Professor Evans told us that the development of UNCLOS’s provisions for the Area were “largely geared towards oil and gas and then some other types of resources in the deep seabed”.371 But there is increasing interest in other mineral resources found in the deep seabed. Professor Egede told us these “strategic mineral resources” include:

“polymetallic nodules, polymetallic sulphides, and ferromanganese cobalt-rich crusts, which contain copper, cobalt, nickel, zinc, silver, and gold, as well as lithium and rare-earth elements, that would be invaluable in meeting demand for batteries for electric cars, solar panels, wind turbines, and other clean energy technologies required for the transition to a low-carbon sustainable future”.372

279.Part XI of UNCLOS designates all resources in the Area as “the common heritage of mankind” and that “Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole”. This proved to be one of the most contentious parts of UNCLOS. Professor Churchill and Dr Hartmann explained:

“Prior to the adoption of UNCLOS, there was a fear that deep sea mining would become a free-for-all … Subsequently, there was a period of time, [after UNCLOS was signed], when it looked as though many industrialised countries would not ratify UNCLOS and instead set up their own mining regime”.373

280.As a result, before it came into force, the signatories to UNCLOS effectively renegotiated its provisions on the deep seabed, via an implementing agreement to Part XI of UNCLOS.374 Despite its name, Professor Evans told us it did not “implement” the existing provisions; it “threw out the existing Part XI of the convention on the deep seabed and more or less rewrote it”.375 Professor Churchill and Dr Hartmann said that this agreement “encouraged industrialised countries to ratify UNCLOS”, leading to the requisite number of signatories for it to enter into force.376

281.The implementing agreement established the International Seabed Authority (ISA), which was given powers to regulate deep sea mining in the Area.

282.The ISA told us that in its view “Part XI of UNCLOS establishes a carefully balanced and comprehensive legal regime that not only safeguards the rights and interests of all humankind, but also pays particular attention to the protection of the marine environment from harmful impacts”.377

283.The main objective of the ISA is to establish regulations permitting exploration and exploitation of natural resources based in the deep seabed. As Professor Harrison explained:

“Regulations of the ISA will be binding on all operators in areas beyond national jurisdiction, without any option to opt-out, which differentiates the ISA from most other international organisations as it exercises a quasi-legislative competence. Moreover, the ISA is in the enviable position of being able to adopt regulations for an emerging industry, before any significant activity has yet taken place. It will also have its own enforcement powers”.378

284.So far, the ISA has not allowed for any exploitation of resources on the seabed but has established regulations on the exploration of manganese nodules, polymetallic sulphides and cobalt-rich ferromanganese crusts. Greenpeace UK told us that ISA has granted exploration contracts for deep seabed mining to all that have applied, amounting to 30 contracts covering approximately 1.3 million square kilometres of seabed.379 Beyond the impending decision on deep seabed mining triggered by Nauru, some witnesses thought that the structure and powers of ISA mean it is not adequate for the protection of deep seabed resources. Greenpeace UK told us that:

“The ISA’s institutional structure and decision-making processes remain inadequate to ensure effective protection for deep sea biodiversity. Issues include lack of transparency; lack of a Scientific Committee to inform its decisions; lack of mechanisms for ensuring compliance with environmental regulations; conflict of interests as the ISA is funded by revenues from issuing mining contracts, just to mention a few”.380

285.Future regulations related to deep seabed mining remain the most contentious issue. Professor Churchill and Dr Hartmann told us that “a major issue” is the extent to which those regulations “will be able to mitigate the inevitable harm to the marine environment caused by deep sea mining”.381 The Pew Charitable Trusts agreed, arguing that scientific knowledge about the deep seabed is insufficient to estimate the impact of mining. They also noted that the technology that would be needed has not been tested, and could cause unintentional damage.382

286.The process of developing these regulations may have to be significantly accelerated as a result of the steps taken by Nauru.383 On 25 June 2021 Nauru triggered the ‘two-year rule384, which obliges ISA to finalise these regulations related to commercial mining within two years.385

287.There is some concern that Nauru’s decision may lead to rushed decision and the dismissal of environmental concerns.386 However, Professor Egede told us that “surprisingly, only the ISA’s African regional group has formally expressed concern about the two-year deadline”. The ISA’s Western European and Others regional grouping, which includes the United Kingdom, has not expressed any official reservations of Nauru’s steps.387

288.The FCDO told us that “until there is sufficient scientific evidence about the potential impacts on deep-sea ecosystems and strong and enforceable environmental regulations in place, the Government has committed not to sponsor or support the issuing of any exploitation licences for deep-sea mining projects”.388 They added that the Government will “continue to press for the very highest environmental standards to be agreed and implemented by the International Seabed Authority”.389 Professor Harrison told us it will be important for the Government to set out by what criterion it will assess ISA regulations to be “strong”.390

289.We would like to hear more about the FCDO’s evidence review of the potential risks and benefits of deep seabed mining, and would like further detail on what the Government is doing to assure that ISA’s regulation on deep seabed mining is evidenced and supported by science. We would also like to hear what assessment the Government has made of the potential future risk of disputes over deep-sea resources.

290.Deep-sea mining should only be authorised when the minerals in question cannot be recovered in sufficient quantity from existing products, as in a circular economy model, and when the deep-sea mining of those minerals is less environmentally damaging than extraction on land. We therefore welcome the Government’s cautious position and ask that it continues to encourage other states to do the same in order to ensure protection of the marine environment.

Living resources on the deep seabed

291.Living resources on the deep seabed are not regulated by the ISA. Until recently there was very limited understanding of the value of living resources on the deep seabed. The BBNJ agreement, discussed in detail in Chapter 4, may result in greater regulation of living resources both on the deep seabed and in the water column.

Fisheries

292.Fisheries are currently the most economically significant living resource in the oceans. Professor Harrison told us that as such, they are a “prominent issue in maritime affairs” and “at the root of numerous disputes at the international level”.391

293.In addition to states’ rights to exploit resources in their EEZs, Article 116 of UNCLOS gives states the right to engage in fishing on the high seas. However, in both the EEZ and high seas, UNCLOS also places a duty on states to “cooperate with other states” in taking measures “as may be necessary for the conservation of the living resources of the high seas” and requires states to establish regional or sub-regional fisheries management organisations (RMFOs) to manage fisheries which straddle different EEZs or EEZs and the high seas.392

294.These provisions were expanded upon in a second implementing agreement to UNCLOS—the UN Fish Stocks Agreement (UNFSA).393 The objective of UNFSA was to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks, both in EEZs and on the high seas.

Challenges facing fisheries management

295.Dr Caddell noted that in reality, many fish stocks are shared between different EEZs. As such, states are required to cooperate on the management and conservation of fish stocks through RFMOs, which “exercise scientific and managerial oversight of these stocks through the will of the coastal states”.394

296.Dr Caddell told us that despite an “alphabet soup” of RFMOs across the globe, many fish stocks remain underregulated:

“If you look at a map of regulatory areas, you will see again this tapestry of regional fisheries management organisations. There are also a large number of gaps within this. Some are due to geopolitical conflict, such as the south-west Atlantic, but a number of fish stocks are deceptively underregulated”.

He added that many RFMOs are “single-species RFMOs”, meaning that various types of fish are not regulated within those areas.395

297.The Minister told us that one such gap in RFMO coverage is around the Falkland Islands.396 He told us that “the establishment of [a] new RFMO to fill that gap” could be a “perfect opportunity to create something with Argentina where our mutual concerns can be addressed in a way that means everyone wins”.397

298.Professor Harrison told us that the effectiveness of the RFMO regime depends upon the quality of regional regulation and enforcement measures.398 He explained that RFMOs have “a large degree of discretion to determine the precise contents of such measures and negotiations are often highly political” and added that “even once agreement has been reached, members are often permitted to opt out of management measures. But recent developments in international fisheries law increasingly require states to give reasons for such opt-outs, allowing for independent scrutiny and even the introduction of sanctions for states which “repeatedly fail to comply”.399

299.However, Professor Harrison noted that “progress on strengthening international fisheries governance is not universal” and that “overfishing remains a problem in some parts of the world”.400 He said there were “several examples in the North-East Atlantic of failed management”, stemming from a lack of agreement on issues such as distribution of total allowable catches. This has led to a situation where countries establish unilateral fishing quotas, “leading to total catches exceeding the scientific advice”.401 Professor Barnes agreed, telling us that around “33 per cent of stocks are currently overfished and only 7 per cent of stocks are fished at the maximum sustainable yield”, suggesting that “existing legal framework is not working effectively”.402

300.Professor Harrison called on the UK, a member of the RFMO covering the North-East Atlantic, to influence the debate on sustainable fisheries in the North-East Atlantic and in other regions of the world.403 As an example, he told us that the UK “has signed but not yet ratified the 2019 Protocol to the International Convention for the Conservation of Atlantic Tunas, which would go some way to strengthening the institutional framework of the International Commission on the Conservation of Atlantic Tunas”.404

301.UNCLOS and the UN Fish Stocks Agreement require states to cooperate to ensure the effective management and conservation of fish stocks that are migratory or straddle exclusive economic zones and the high seas. Many Regional Fisheries Management Organisations have been formed, but they do not cover all fish stocks. There are also examples of failed management, including in regional fisheries management organisations the UK is party to.

302.We urge the Government to mark the 40th anniversary of the Falklands War with a serious effort to establish a regional fisheries management organisation that would address the current fishing challenges in the waters between the Falkland Islands and Argentina.

303.We ask the Government to confirm why it is yet to ratify the 2019 Protocol to the International Convention for the Conservation of Atlantic Tunas.

Illegal, unreported and unregulated fishing

304.Witnesses told us that the biggest challenge facing effective fisheries management was illegal, unreported and unregulated (IUU) fishing. IUU fishing is a broad term that can refer to: fishing in territorial waters of a state without its permission, fishing in violation of national laws or international obligations, not reporting catches to relevant national authorities; and fishing in contravention of rules established by RFMOs.405

305.Professor Barnes identified two main drivers of IUU fishing. First, there are “economic drivers”—there are “more vessels able to catch fish than there are fish to be caught”, and “as long as we have excess fishing capacity, there will always be pressure to engage in fishing activities.”406 Second, there are demand drivers, as there will “always be incentives to try to catch fish to either sell or pass on”.407

306.Professor Barnes told us that the economic cost of IUU fishing is estimated to be between $10 billion and $23 billion per year: “about 20 per cent of global commercial fish catch”.408 Dr Caddell told us that according to the most widely cited study, “up to 31 per cent of catches in particular fisheries could be IUU in nature”, and across the oceans as a whole it could be around “one in five wild caught fish”.409

307.RFMOs have an important role to play in addressing IUU fishing. However, Professor Barnes told us that there are two challenges facing the use of RFMOs to address IUU fishing. First, he explained that some RFMOs “simply lack the competence to regulate fisheries”, which “contributes to the unregulated aspects of fishing activity”.410

308.Second, even where RFMOs develop regulations, they may not necessarily be effective as they are non-binding on third states. Professor Barnes explained that “although RFMOs have the power to adopt regulations and they can encourage non-contracting states to participate in those, strictly speaking … treaty obligations do not bind third states without their consent”. As a result: “You will always have a potential free-rider problem”.411

309.Third, there are limited mechanisms to hold states to account for failing to deal with IUU fishing. Professor Barnes explained that:

“States may sign up to [UNCLOS], the Fish Stocks Agreement or the Port State Measures Agreement, which require them to inspect vessels coming into port for IUU fishing activities, but if they fail to implement them, the shortcomings are not exposed and there are no mechanisms to address that in the same way there are under the mandatory audit system”.412

310.Professor Barnes said that “tackling IUU fishing is not just a legal issue” and argued that it should be approached in a “more holistic manner”. In addition to regulation, it would require “improvements of implementation and compliance”, “capacity building”, and “working with … markets and purchasers of seafood products to introduce changes that can drive changes up the supply chain”.413

311.The FCDO identified IUU fishing as:

“One of the most serious threats to the sustainable exploitation of living aquatic resources. It depletes fish stocks, distorts competition and destroys marine habitats. It jeopardizes the very foundation of international efforts to promote better ocean governance and undermines efforts to manage fisheries properly”.414

It told us that the UK is playing an “active role” in organisations such as the UN Food and Agriculture Organization, Commission for the Conservation of Antarctic Marine Living Resources, and International Maritime Organization to promote sustainable fishing, and is “specifically pushing for strengthened measures in preventing and deterring IUU fishing”.415

312.The Government should be a leader in strengthening the management and enforcement powers of regional fisheries management organisations. This would apply for both signatory states and those non-signatory states that fish in the area of the RFMO or fish the species covered by an RFMO.

313.Illegal, unregulated and unreported fishing is one of the biggest threats to the effective management of fish stocks and a major cause of overfishing. We ask the Government to provide us with more detail on the actions it is taking to address IUU fishing, particularly in Regional Fisheries Management Organisations of which the UK is a member.

Impact of climate change on fish stocks

314.An increasing challenge to the effective management of fisheries is the impact of warming oceans. The International Council for the Exploration of the Sea reported in 2017 that there have been changes in the distribution of 16 North-East Atlantic species, and that eight of these have shifted across management boundaries.416

315.Professor Harrison warned that climate change could have significant impacts on the existing systems of catch management, “as states may start to demand changes to management rules to reflect the new status quo, potentially leading to resource conflict”.417 On the other hand, “the precise extent and permanency of any changes might be disputed by other states who could lose out from an amendment to existing arrangements”. He advocated for “credible and transparent scientific information to form the basis for decision-making” as well as more robust decision-making processes and associated accountability mechanisms”.418 The impacts of climate change on fish stock are also discussed in Chapter 4.

Subsea cables

316.International communication subsea cables are responsible for around 95–97 per cent of global communications, and as such are a significant economic asset.419 The UK itself relies on 62 fibre optic cables and further 97 interconnectors and power cables. Global Marine Group estimates that around 25 per cent of electricity arrives to the UK via these cables, and that figure “is rapidly expanding”. Subsea cables also connect the UK energy grid to energy coming from oil, gas and renewables.420

317.UNCLOS provides several provisions for the laying of subsea cables. Articles 58, 79 and 112 give all states the rights to lay submarine cables in exclusive economic zones and continental shelves and the high seas respectively.421 States also have the right to “establish conditions for cables … entering its territory or territorial sea” and when laying cables, must have “due regard to cables or pipelines already in position”.422

318.UNCLOS also includes provisions for the maintenance and repair of cables. Articles 113–115 requires states parties to introduce domestic legislation setting out how any damage (whether by ships or by individuals) will be penalised. The culpable party (a ship flagged to a state or a state’s national) is financially accountable for the damage.423

319.Other important international agreements further regulating submarine cables include the 1884 International Convention for the Protection of Submarine Telegraph Cables; and the 1972 International Regulations for Preventing Collisions at Sea.424

Challenges in practice

320.Accidental anchoring, fishing and natural disasters are the most common causes of damages of undersea cables.425 They may be also targeted as parts of wider military operations (as was the case in Crimea), or potentially be subject to terrorist attacks.426

321. Although UNCLOS requires states to develop domestic legislation related to deep sea cables, we heard that many states still have not done so. The FCDO told us that there were instances when a cable beneath the high sea or EEZ was damaged, either intentionally or due to recklessness, and “no crime has [technically] been committed”.427 Professor Klein agreed, saying that there are no “comprehensive rules protecting submarine cables”, despite the fact they are “critically important for the global economy”.428

322.Additional legal and practical challenges stem from the fact that undersea cables are usually owned and operated by global multi-owner businesses rather than states. SafeSeas told us that laws regulating operations of such companies are unclear: “In contrast to ships that have a clearly assigned nationality, cables are not under full sovereignty or flag”.429

323.Cables crossing disputed maritime areas face additional challenges. Although UNCLOS does not provide clarity about cables located in disputed maritime areas, according to Dr van Logchem companies (which are usually based in a third state not involved in the dispute) can freely maintain, lay or repair undersea cables.430 But in practice states sometimes “use submarine cables as a vehicle to strengthen their claim to the disputed area in question”.431 For example, they might adopt legislation “that would require a permit to be obtained if a submarine cable company wants to place a new submarine cable system within the disputed EEZ area”.432 As a consequence, companies tend to avoid disputed territories, even if that requires hundreds of kilometres of additional cables and increased costs.433

324.Lastly, witnesses added that there is also a “lack of information sharing on cable breaks” which “poses a threat to the functioning and security of the global subsea cable system and global connectivity”.434

Priorities for the United Kingdom

325.The FCDO told us that the Government maintains engagement with the subsea cable industry over the protection and maintenance of cables and encourages the installation of additional cables to “ensure resilience and route diversity”. It added the Government is “alert to State threats to cables” and is working with allies to mitigate them.435

326.Global Marine Group told us that stronger domestic regulation is needed, with a “permit system overseen by Ofcom and Ofgem”.436 This would require a “mandatory UK sovereign repair coverage” and a “regular inspection regime”.437 They suggested that it should also be mandated that maintenance is undertaken by UK flagged vessels, which would “give the Government more control in the case of a national emergency, ensuring that prioritisation could be given to domestic cables, connectivity, security and power”.438 Dr Galani suggested that the UK could come up with suggestions for “a strategy or co-operation agreement” addressing the need to secure undersea cables.439

327.In terms of international regulation, SafeSeas called for closer cooperation between the Government and the International Cable Protection Committee, for example on a future global strategy “for developing new law and improving global awareness and everyday information sharing on the issue”.440

328.Subsea cables are a critical element of the UK’s communications infrastructure. While UNCLOS places obligations on states to allow for the laying and repair of such cables, these are not always followed in practice. It is crucial that the laws are clear where responsibilities lie for the maintenance and protection of subsea cables. The international regulatory regime is unclear, and this must change, considering their significance. The Government should work with partners and others to address this. The UK should work to improve domestic legislation for cables in the UK’s territorial waters, as well as working with partners to strengthen the international regulatory regime.

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