The law of the sea in the 21st century: Lords Committee outlines actions for Government
The House of Lords International Relations and Defence Committee has today published its report looking at the effective operation of the Law of the Sea in the modern era; entitled UNCLOS: The law of the sea in the 21st century.
Commenting on the report, Baroness Anelay of St Johns, Chair of the International Relations and Defence Committee said:
“The UK is a major maritime power and has a strong overarching role to play in the development and maintenance of the law of the sea. It must, along with its partners and allies, step up to meet the 21st century challenges to UNCLOS (the United Nations Convention on the Law of the Seas), to ensure its continued relevance.
“UNCLOS represents a great example of what can be achieved when states come together and act in diplomatic cooperation. In some respects, even forty years after its ratification it remains operational because its key achievements of standardising states’ claims to maritime zones and providing a framework to settle any disputes remain largely successful.
“It is clear, however, that there are gaps in UNCLOS which affect its efficacy, especially in regard to modern issues that have arisen in the years since its ratification. These developments include rising sea levels, climate change and new technology related to maritime autonomous vehicles. It is also essential to address other issues that have become more prominent and problematic since UNCLOS was drafted: such as human rights at sea and maritime security. The treaty’s provisions must be updated and supplemented in order for UNCLOS to remain fit for purpose.”
The report acknowledges key success factors and achievements of UNCLOS, principally that its framework status allows it to operate as a “living treaty” that can be adapted to reflect modern circumstances and develop international law; and that it represents a major example of diplomatic cooperation between member states.
The report concludes however, that if the provisions of UNCLOS are not supplemented, or further developed it would no longer be fit for purpose in the 21st century. The report highlights several gaps and weaknesses in UNCLOS that the Government needs to address to ensure its continued effective operation in the modern era.
Climate Change and the Marine Environment
The Arctic is a fragile and valuable marine environment that is facing significant climate change impacts and the Committee considered it vital that the increased economic opportunities are not prioritised over protecting the marine environment. It recommends that the Government must continue to advocate for the protection of the marine environment and promote a more careful approach to the extraction of living and non-living resources.
The Committee found it encouraging that the Government does recognise that climate change will become a significant driving factor for migration. However, it asks for further detail in the Government’s response to this report on how the UK is preparing to support migrants in light of the risk some may lose their territories and statehood. The response from the Government must include details of those territories most likely to be at risk and the number of people likely to be adversely affected. The Committee also calls for the Government to continue pushing for recognition of the oceans within the United Nations Framework Convention on Climate Change (UNFCCC), and for greater coordination between the UNFCCC and UNCLOS processes.
The Committee concluded that enforcement is one of the weaknesses of international law as the provisions of UNCLOS are not always complied with despite the adoption of the convention by most countries. The widespread use of flags of convenience poses a particular challenge to maritime security and law enforcement on the high seas. The Committee urges the Government to work more closely with likeminded partners, via the International Maritime Organisation (IMO) and other international bodies, to address some of the regulatory gaps in UNCLOS. The Government should use its influence and voice within the IMO to explore ways it can update and amend the existing law to address concerns, including modern challenges such as maritime autonomous vehicles, human rights at sea, rising sea levels, new technologies and the quest for ever more resources. The Government must take a leadership role and work with others to ensure the link between vessels and the state in which they are registered is genuine and show a good example to other states by tightening the criteria for its own ship registry.
Human Rights and labour protections at sea
While UNCLOS addresses human rights in a limited capacity, it is clear international human rights laws apply to people at sea. The Committee found that in practice there are barriers to the application of these rights with victims suffering insufficient access to timely and effective justice due to the complex jurisdictional issues concerning crimes that occur at sea. In some cases, such victims are completely denied access to an effective remedy. The Government acknowledged the existence of these barriers but was silent on how it intended to address them. The Committee urges the Government to consider advancing an agreement to address human rights abuses at sea. Such an agreement must take a holistic approach to human rights so the Government works with likeminded partners to advance a unified approach to this issue. The approach 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 human rights at sea. A full range of options should be considered including port state controls, sanctions, and private arbitration systems.
Domestic legislation and UNCLOS
Rendering assistance to persons in distress at sea is an obligation for states under UNCLOS. The Committee found that this obligation is increasingly side-lined by security and domestic immigration policies. This is particularly apparent in a climate where vulnerable groups, including refugees and asylum seekers frequently need emergency assistance as a result of travelling in unseaworthy vessels. Despite assurances from the Government, the Committee remains unconvinced that provisions relating to maritime migration and ‘turnaround tactics’ in the Nationality and Borders Bill are compliant with the UK’s duties under UNCLOS. The Committee concludes that the Government must ensure its own domestic legislation fully reflects its obligations under international human rights law, in particular, the Nationality and Borders Bill. In response to this report, the Government must provide a full assessment of the compatibility of the provisions in the Bill dealing with so-called forced turnarounds with the UK’s international responsibilities under Article 98 of UNCLOS. The Government should provide active support to developing states so that they too can uphold the principles of UNCLOS through law enforcement and environmental protection activities.
The Committee highlights a number of other notable findings and recommendations including;
The actions of China in the South China Sea directly undermine the principle of freedom of navigation provided for in UNCLOS. Evidence heard by the Committee suggests that China will continue to reject this principle and that of freedom of innocent passage. China’s stance poses a challenge to international law. The UK Government should continue to work with its partners and allies to protect and preserve the principles of freedom of navigation not only in South China Sea, but in every region where it is challenged.
UNCLOS and related instruments have generally been successful at tackling piracy, but there remain challenges. Acts of piracy often originate from the land and cannot be solved by agreements focused only on the sea. The Government should monitor any developments involving remotely operated maritime autonomous vehicles and push for clarity in the existing rules if there is an increase in their use for piratical acts. They should assist other coastal states to maintain the good order of the oceans and suppress maritime security threats, including piracy and armed robbery at sea.
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 and some Organisations have been mismanaged. The Committee urges 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.
Deep-sea mining should only be authorised when the minerals in question cannot be recovered in sufficient quantity from existing products and when the deep-sea mining of those minerals is less environmentally damaging than extraction on land. The Committee asks the Government for more information on its evidence review of the potential risks and benefits of deep seabed mining, and further detail on its actions to ensure that the International Seabed Authority’s regulation on deep seabed mining is evidenced and supported by science. In addition, it asks what assessment the Government has made of the potential future risk of disputes over deep-sea resources.
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