Table of contents
- 1. UN Convention on the Law of the Sea
- 2. House of Lords International Affairs and Defence Committee report
- 3. Government response
On 28 November 2022 the House of Lords is due to debate the House of Lords International Relations and Defence Committee’s report ‘UNCLOS: The law of the sea in the 21st century’, published on 1 March 2022.
1. UN Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea (UNCLOS), adopted in 1982, established rules governing all uses of the oceans and their resources. It includes traditional rules for the uses of the world’s oceans and seas and new legal concepts to address current concerns. The convention also provides the framework for further development of specific areas of the law of the sea.
The then secretary general of the UN, Boutros Boutros-Ghali, described UNCLOS as “possibly the most significant legal instrument of this century” when it came into force in 1994. The convention includes provisions on:
- navigational rights
- territorial sea limits
- economic jurisdiction
- legal status of resources on the seabed beyond the limits of national jurisdiction
- passage of ships through narrow straits
- conservation and management of living marine resources
- protection of the marine environment
- a marine research regime
- a binding procedure for settlement of disputes between states
2. House of Lords International Affairs and Defence Committee report
Launching its inquiry in October 2021 the committee set out to examine whether UNCLOS was still “fit for purpose”. New challenges, such as rising sea levels and autonomous maritime vehicles, have arisen in the 40 years since the convention was negotiated. In addition, the committee wanted to investigate whether UNCLOS could address issues which have intensified in recent years, such as maritime security, human rights abuses at sea, biodiversity loss and environmental degradation.
The committee’s report assessed the convention overall before looking in detail at five areas:
- maritime security
- climate change and the environment
- human rights and labour protections at sea
- maritime autonomous vehicles
- regulation of access to economic resources
The committee highlighted that enforcing UNCLOS was a challenge, while recognising that this was true for all international law. The committee addressed ‘open registries’, in which countries allow foreign-owned or controlled vessels to use their flag. It said that these are usually “flags of convenience” (where a ship sails under the flag of a state with limited domestic regulation and enforcement capacity and few criteria for registration) and have led to a “jurisdictional vacuum” on the high seas. The committee argued that while UNCLOS had largely been successful, it should be updated and supplemented to address current challenges.
The committee recommended that the government:
- use its influence in the International Maritime Organization, based in London, to explore ways to update the existing law
- reconsider its position that annual meetings of the states parties to UNCLOS are not an appropriate forum to discuss substantive issues
- take on a global leadership role in developing and enforcing the law of the sea, increasing its engagement with states and other actors
- aim to increase the presence of British judges on institutions like the International Tribunal for the Law of the Sea
2.2 Maritime security
The committee said that many of the flag states with the largest registered tonnage did not have “the capacity or inclination” to “fulfil their obligations in terms of management, control or enforcement of their registered fleet”. The committee recommended that the government work with others to ensure there is a genuine link between vessels and the state in which they are registered, and to tighten the criteria of its own ship registry as an example to others.
On piracy, the committee said that UNCLOS and related instruments had “generally been successful” at tackling piracy. It acknowledged that piracy often originates on land and cannot be solved by agreements focused on the sea, but that supplementary agreements to UNCLOS had helped address the situation. The committee said the government should further enhance its capacity-building activities to assist other coastal states to address security threats including piracy and armed robbery at sea.
The committee highlighted that China has claimed exclusive jurisdiction over the South China Sea and rejected the principles of freedom of navigation and freedom of innocent passage as outlined by UNCLOS. The committee recommended that the government “continue to work with its partners and allies to protect and preserve the principles of freedom of navigation”.
2.3 Climate change and the environment
The committee noted that rising sea levels, caused by climate change, will affect the maritime entitlement provisions in UNCLOS. Maritime zones are areas where a coastal state has jurisdiction. Currently, they are calculated from baselines. The most commonly used baseline follows the low-water line along the coast of a state. The “traditional view”, according to evidence given to the committee, is that baselines move with the low-water line (they are “ambulatory”). As sea levels rise, the low-water line of many coasts will move inwards, reducing states’ maritime zones.
The committee said that the government should take a formal position that baselines should remain fixed in their current position. This would ensure that no states, including the UK and its overseas territories, lose their current maritime entitlements.
The committee also recommended that the government push for recognition of the oceans within the UN Framework Convention on Climate Change. This would help to address the impacts of greenhouse gas emissions and climate change on the oceans and to strengthen the duties relating to land-based sources of pollution.
The committee also made recommendations on net zero shipping, fish stocks, the Arctic, and marine biodiversity in areas beyond national jurisdiction (also referred to as ‘BBNJ’).
2.4 Human rights and labour protections at sea
The committee highlighted that UNCLOS does not significantly address human rights. The committee said the government acknowledges that human rights at sea include a wide range of rights, and not just those concerning to labour conditions.
The committee said that under UNCLOS states have a duty to render assistance to persons in distress at sea, but “this obligation is increasingly side-lined by security and immigration policies”. The committee said that despite assurances from the government it was “not convinced that provisions relating to maritime migration and ‘turnaround tactics’ in the Nationality and Borders Bill [now the Nationality and Borders Act 2022] are compliant with the UK’s duties under UNCLOS”. It asked for the government to provide “a full assessment of the compatibility of the provisions in the Nationality and Borders Bill dealing with so-called forced turnarounds with the UK’s international responsibilities under article 98 of UNCLOS.
The committee argued that victims of human rights abuses that take place at sea often do not have access to timely or effective justice because of complex questions concerning legal jurisdiction. The committee said the government could investigate a range of mechanisms for addressing human rights abuses at sea, including port state controls, sanctions, and private arbitration systems.
2.5 Maritime autonomous vehicles
Maritime autonomous vehicles are a recent invention. They replicate many of the functions of traditional vessels, and provide new capabilities for operators, but do not necessarily need a crew to operate them. The International Maritime Organization has said that maritime autonomous vehicles can be divided into four classes. These range from ‘degree 1’ ships that have some automated systems but still have people on board, through to ‘degree 4’ where the ship is fully autonomous and capable of making its own decisions.
The committee commended the Royal Navy for adopting a “principle of equivalence”, treating autonomous ships the same as traditional ships. The committee said the government should monitor and work with others to regulate these technologies with regard to the principle of states being held accountable for their actions.
2.6 Regulation of access to economic resources
The committee recommended that deep-sea mining for resources should only be authorised when the minerals in question could not be recovered in sufficient quantity from existing products and when the deep-sea mining of those minerals was less environmentally damaging than extraction on land.
The committee also said that the government should establish a regional fisheries management organisation to address the current fishing challenges in the waters between the Falkland Islands and Argentina. It also suggested that the government strengthen the management and enforcement powers of regional fisheries management organisations more generally.
3. Government response
The government responded to the committee’s report on 9 June 2022. On 20 July 2022 the chair of the committee, Baroness Anelay of St Johns (Conservative), wrote to Lord Goldsmith of Richmond Park, a minister at the Foreign, Commonwealth and Development Office, asking for further information in response to the report. The government responded to this letter on 15 November 2022.
3.1 Government response to the report
In its response of 9 June 2022 the government said it agreed with many of the committees conclusions and was already working on many of the areas the committee had highlighted. There were, however, some areas where the government expressed a different view to the committee. These included:
- The government said that it did not agree the annual meeting of states parties to UNCLOS was an appropriate forum for discussing substantive issues, as since its establishment this meeting has been limited to discussion of budgetary and administrative matters and there was “no consensus” this should be changed.
- The government did not agree that the use of open registries, or flags of convenience, was a problem. It said the record of compliance with international conventions by vessels on open registries was not significantly worse than that of vessels on other registries.
- The government said it shared the concerns of the committee regarding forced labour and other labour exploitation abuses of those working at sea. It said, however, that it believed the Maritime Labour Convention 2006 and the International Labour Organisation Work in Fishing Convention 2007 (No.188) provided an effective framework to identify such abuses through port state control.
- The government said it intended to “take a cautious approach” to the question of whether baselines should be fixed in place in the face of climate change-induced sea-level rise. It said its general view was that baselines were ambulatory. It said it would keep this position under review.
On rendering assistance to persons in distress, the government said:
The safety of life at sea will always be the priority for any interceptions of small boats crossing the Channel to facilitate illegal migration, whether under current or future powers. The use of these powers will always be in compliance with international obligations including to promote safety and protect life. All immigration officers receive relevant training before being able to carry out their duties and exercise powers and must in any event exercise those powers in accordance with the requirements of the Human Rights Act  as well as UNCLOS article 98.
The Ministry of Defence has taken over primacy in respect of Channel operations with regard to small boat crossings following the prime minister’s announcement on Thursday 14 April 2022. The turnaround policy and procedures have been withdrawn. If a decision were taken to use turnaround tactics in the future, it would only be after a full consideration of all relevant matters, including the evolving nature of the small boats threat, migrant behaviour and organised criminal activity; and new policies, guidance and operational procedures would need to be formulated at that point. The government’s position remains that the policy on the use of the tactic is lawful.
On China’s claims in the South China Sea, the government said:
In the South China Sea our commitment remains to international law, the primacy of UNCLOS, and to freedom of navigation and overflight. We take no sides in the sovereignty disputes and encourage all parties to settle their disputes peacefully through the existing legal mechanisms. China has never clearly articulated the basis of its so-called ‘nine dash line’ claim in the South China Sea. As the former minister for Asia [Nigel Adams] said in Parliament on 3 September 2020, if the claim is based on ‘historic rights’ to resources within the ‘nine dash line’, it is inconsistent with UNCLOS and the UK objects to any claim not founded in UNCLOS. The former minister for Asia also confirmed in that speech that the UK rejects any claim by China to approximate the effect of archipelagic baselines around groups of features in the South China Sea as inconsistent with UNCLOS. We welcome that negotiations have restarted between China and ASEAN on a code of conduct for the activities of claimant states in the South China Sea. We hope that an effective and substantive code of conduct is concluded but are clear that it should be consistent with UNCLOS and reflect and respect the rights and interests of third parties.
3.2 Letter from the chair of the committee to the government
In her follow-up letter of 19 July 2022, Baroness Anelay said there were areas on which the committee would like to seek further information from the government. She also said that on the areas of flags of convenience and human rights at sea the committee was “disappointed with the government’s response”.
- Annual meeting of states parties to UNCLOS: the government’s response said that the reason for not using the meetings for discussion of more substantive issues was because there was “no consensus” for this. Baroness Anelay asked if the government would investigate whether there was an appetite among other states for these meetings to change focus.
- Flags and registries: the committee said it was disappointed with the government’s response on flags and registries. It argued that “flags of convenience” result in poor law enforcement and the government should work to address this. It also said it was dissatisfied with the government’s assertion that it had been acceded to the 1986 Convention on Conditions for Registration of Ships because “the UK does not accede to maritime conventions until they have entered into force”. The committee asked the government whether it agreed with its assessment that lack of enforcement resulting from “flags of convenience” posed a “significant challenge” for maritime security.
- Human rights at sea: in her letter, Baroness Anelay raised several issues relating to human rights at sea, including:
- how the government intended to address the issue of where seafarers had access to methods to enforce their human rights
- whether the government would clarify its position on whether human rights applied to all seafarers and not just workers, and whether these applied in all seas and not just UK territorial sea
- flag states’ ability to enforce international law
- how the government intends to tackle the issue of forced labour and other labour exploitation abuses at sea
- under what circumstances the government considers victims can bring a complaint or case in the UK
- pursuing a unified approach to human rights at sea, on what basis the government considers “turnaround tactics” to reflect obligations under article 98 of UNCLOS
- Maritime autonomous vehicles: the committee said it was largely satisfied by the government’s responses in this section. However, it asked for further information on government plans to develop a legal framework for remotely operated and autonomous vehicles and whether consultation would be required before the secretary of state could update security regulations.
- The Arctic: the committee asked the government for more information on the actions the government was taking to monitor security developments in the Arctic and the UK’s progress towards joining the Central Arctic Oceans Fisheries Agreement.
- Climate change: in its letter, the committee asked the government to provide further detail on the types of solutions it envisaged to the problem of changing maritime entitlements as a result of sea level rise. It also asked for more information on the government’s assessment of the territories most likely to be at risk of loss of statehood or territory, and the number of people likely to be adversely affected.
- Deep sea mining: the committee asked for the government to provide the committee with a timeline of the expected publication of its report on deep sea mining and for the committee to be kept up to date on its progress.
- Regional fisheries management organisations: the committee asked the government to provide more information on its efforts to establish a regional fisheries management organisation in the southwest Atlantic.
- Subsea cables: the committee acknowledged the government’s agreement with its assessment that the security and resilience of subsea cables were a matter of importance. However, it asked for more information on how the government would ensure this and make the UK an attractive destination for transnational cables.
3.3 Government response to the chair’s letter
On 15 November 2022 Lord Goldsmith replied to Baroness Anelay’s letter requesting further information. The government’s reply addressed the points raised in the committee’s letter, and also provided information that the committee had subsequently requested on international negotiations on deep sea mining regulations, marine biodiversity beyond national jurisdiction (BBNJ) and other matters.
On flags and registries, the government said it reiterated its position that open registries could pose a challenge to maritime security on the high seas and that it would support and encourage the need for all flag states to meet their duties and responsibilities. It said it would take a leading role in reviewing the 1986 Convention on Conditions for Registration of Ships.
On deep sea mining, the government said the UK continued to be “fully engaged” in the ongoing negotiations to agree exploitation regulations with respect to deep sea mining at the International Seabed Authority (ISA). It added that it hoped to adopt regulations in July 2023. It also said that the UK’s policy position was not to sponsor or support the issuing of any exploitation licences for deep sea mining projects until there was sufficient evidence about the potential impact on deep sea ecosystems.
In August 2022 negotiations on an international legally binding instrument on BBNJ under UNCLOS concluded without an agreement. The government said it was disappointed an agreement was not reached but noted that “more progress was made over two weeks than in many years of previous negotiations”.