Nautilus International - Written evidence (UNC0023)

Call for Evidence - UNCLOS: fit for purpose in the 21st century?

Nautilus International - Response

Introduction

Nautilus International is the Trade Union and Professional Organisation representing around 21,000 Masters, Officers, Officer Trainees (Cadets) and other maritime professionals including Marine Pilots and large yacht personnel. We also have members based in the Netherlands and in Switzerland.

General

1. What have been the main successes and accomplishments of UNCLOS over the past 40 years?

One of UNCLOS’s strength’s is its wide level of ratification, with 168 parties (although the USA is a notable exception), setting out a framework for the legal order of the seas and oceans, dictating the extent of States’ rights and obligations. As such, it provides almost universal rules on important matters like: setting the limits of the territorial sea to a maximum of 12 nautical miles (Article 3); freedom of the high seas (Article 87); right of navigation (Article 90); right to set conditions for the nationality of ships including that there must be a ‘genuine link’ with the flag State (Article 91); sets down the duties of flag State to effectively exercise jurisdiction and control in administrative, technical and social matters over ships flying its flag (Article 94); provides for ships to have the right of ‘innocent passage’ and ‘transit passage’ through the territorial seas and international straights bordering all signatory countries (Articles 17 and 38); duties to render assistance at sea (Article 98) and to cooperate in the repression of piracy (Article 100).

These provisions are essential for the effective navigation and operation of merchant shipping. However, too often flag states fail to establish a genuine link, and, are thus unable to exercise effective jurisdiction and control. As the Covid-19 health pandemic revealed, there were serious flag State failures that left seafarers denied their basic human rights, in conditions tantamount to forced labour.

2. Which countries are the key international actors influencing the international law of the sea? What are their approaches towards UNCLOS?

N/A

3. How is UNCLOS enforced and how successful is its enforcement? How successful is dispute resolution under UNCLOS?

UNCLOS itself contains various mechanisms for the settlement of disputes (Part XV), and other provisions, including the rules of the operation of the International Tribunal of the Law of the Sea (Part XVII).

There have been some successes in the use of Article 292. This provides that, where a State Party has detained a vessel flying the flag of another State Party, and it is alleged that the detaining State has not complied with the provisions of UNCLOS, the flag State may apply to a court (or ITLOS) for the prompt release of the vessel or its crew, upon the posting of a reasonable bond, or other financial security.

A high profile example of the use of Article 292, resulted in the ITLOS ordering Russia to release the ‘Arctic Sunrise’ on the application of the flag State (the Netherlands), and the remainder of the Greenpeace protestors, who were on the vessel when Russia seized it in September 2013.

A weakness in Article 292, is that it is only the flag State of the seized vessel, that is entitled to act thereunder. Consideration should be given to widening access to the use of this mechanism to seafarers, their trade unions, and shipowners.

Another and very serious weakness of UNCLOS is any agreed definition of what constitutes a ‘genuine link’ required under Article 91. Although there is some legal precedent and considerable academic comment on what constitutes a genuine link for the purpose of satisfying Article 91, it is generally understood that a flag State must require there to be a substantial presence within the State to be able to satisfy the requirements of Article 94 (which sets out the duties of the flag State) and thereby enable the flag State to effectively exercise jurisdiction and control over the ship flying its flag. This is not evident, however, for much of the world fleet, which is predominately registered in flag States described by the International Transport Workers’ Federation as ‘Flags of Convenience’. The top three flags States (by volume) in the world operate on this basis (i.e. Panama, Marshall Islands and Liberia) and account for over 40% of the world fleet.

4. What are the other important international agreements and treaties which complement UNCLOS?

Three of the main ones are the IMO’s International Convention on Safety of Life at Sea, 1974 (SOLAS), the IMO’s International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW), and the ILO’s Maritime Labour Convention, 2006. The preamble of the MLC states: -

Recalling that the United Nations Convention on the Law of the Sea, 1982, sets out a general legal framework within which all activities in the oceans and seas must be carried out and is of strategic importance as the basis for national, regional and global action and cooperation in the marine sector, and that its integrity needs to be maintained, and

Recalling that Article 94 of the United Nations Convention on the Law of the Sea, 1982, establishes the duties and obligations of a flag State with regard to, inter alia, labour conditions, crewing and social matters on ships that fly its flag,

… and …

In Article V(2) the MLC, 2006 also states as follows: -

Each Member shall effectively exercise its jurisdiction and control over ships that fly its flag by establishing a system for ensuring compliance with the requirements of this Convention, including regular inspections, reporting, monitoring and legal proceedings under the applicable laws.

The other important flag State duties in Article 94 of UNCLOS are the exercise and control of administrative and technical matters over the ships that fly its flag and the crew on board. These include the taking of measures to ensure the safety at sea with regards to, inter alia: construction, equipment, and seaworthiness of ships; the manning of ships, labour conditions, and the training of crew, taking into account the applicable international instruments; the use of signals, the maintenance of communications and the prevention of collisions.

SOLAS in its successive forms is generally regarded as the most important of all international treaties concerning the safety of merchant ships; STCW is the main convention setting out training and certification requirement for watchkeepers; MLC makes express reference to those Conventions, and sets out its own provisions on seafarers’ fundamental rights, living and working conditions.

5. What is the role of the International Maritime Organisation (IMO) and other international organisations in developing UNCLOS and the law of the sea?

The IMO is the United Nations specialized agency with responsibility for the safety and security of shipping and the prevention of marine and atmospheric pollution by ships. The IMO’s work is divided across many internal committees, which develop laws, policies and practices, which build on, and, complement UNCLOS, in areas such as: maritime safety, security and piracy, environment, legal affairs, human element, facilitation and technical cooperation.

The ILO is the United Nations specialized agency whose mandate is to advance social and economic justice through setting international labour standards. Founded in October 1919 under the League of Nations, it is the first and oldest specialised agency of the UN. Under the tripartite mechanism that underpins the ILO’s work it has, over 100 years, developed a range of maritime instruments covering the living and working conditions of seafarers, which, for the most part, have been updated and consolidated into a single “Bill of Rights” for seafarers in the Maritime Labour Convention, 2006 (as amended). The Convention entered into force in 2013, and, has been ratified by 98 States, including the UK.

In recent years there has been excellent cooperation between the IMO and the ILO, particularly in regard to enhancing the rights and welfare of seafarers, such as those contained in the MLC.

A notable output is the Joint IMO/ILO Guidelines on the Fair Treatment of Seafarers in the Event of a Maritime Accident.

Challenges

6. What are the main challenges facing the effective implementation of UNCLOS in 2021? We would particularly welcome responses on:

Climate change and the impact it has had/will have on the structures and provisions of UNCLOS (including trading routes, maritime boundaries, and the status of island ocean states)

Maritime security and human rights at sea (including migration, modern slavery and human trafficking)

One of our main concerns is the lack of observance and enforcement of UNCLOS in regard to ship registration under Articles 91 and 94, in that, many flag States do not, in practice, require there to be a ‘genuine link’ with the ship flying its flag. This has led to the emergence of the ‘flags of convenience’ against which the International Transport Workers’ Federation has campaigned for many decades.

Consequently, shipowners have been able to register their ships with States with which they have no or little connection, to avoid taxes, social security payments and generally avoid scrutiny. They can choose States with a low level of employment rights, and even these will often not be available to seafarers because they do not come within the territorial jurisdictional catchment provisions, due to them and their employer/shipowner having no substantial connection with the flag State. Consequently, such flag States do not have effective jurisdiction and control over ships that are registered with them, indeed, they appear to have little interest in doing so.

The overall result for seafarers is that they: are not subject to the human rights legislation or the general employment rights of the flag State; they gain nothing by way of social security from the flag State; when they are abandoned in a foreign country, or are subject to unjust criminalisation, the flag State has no interest in coming to their aid.

In the past, the UK has sought to establish this genuine link with the ship, through requiring that the shipowner must meet one of a list of criteria, which are currently set out in the MCA’s ‘A Guide to Registration’ (page 4) (April 2019) : -

Eligibility The following persons are qualified to be the owners of ships to be registered on Part 1 the Register:

• UK citizen • British dependant territories citizen • British overseas citizen • company incorporated in one of the European Economic Area (EEA) countries • citizen of a EU member state exercising your rights under articles 48 or 52 of the EU Treaty in the UK • company incorporated in any British overseas possession which has its principal place of business in the UK or those possessions • company in an European Economic Interest Grouping (EEIG) • Commonwealth citizens • citizens listed in Schedule 6 • non-United Kingdom nationals who are settled in the United Kingdom • bodies corporate incorporated in a Commonwealth state • bodies corporate incorporated in a country listed in Schedule 6.

If none of the qualified owners are resident in the UK, a representative must be appointed who is either of the following: • an individual resident in the UK • a company incorporated in one of the EEA countries with a place of business in the UK

Even for a quality flag, this is a very wide list of criteria, and one wonders what degree of effective jurisdiction and control the UK enjoys, post-Brexit, over companies registered in the EEA, or, such entities as a European Economic Interest Grouping, or, when the owner of the vessel merely appoints a ‘representative’.

The current list of Flag of Convenience States designated by the ITF includes several flags which are part of the Red Ensign Group of ship registers overseen by the UK Ship Register.

Autonomous maritime vehicles (both commercial and military), cybersecurity, and other new technologies

With regards to Maritime Autonomous Surface Ships (MASS) there are several provisions within UNCLOS that would appear to present a barrier to their adoption or rule it out entirely if left unamended.

For example, a State’s right to ban ships from its ports and inner waters and to lay down special regulations on foreign ships’ port calls under UNCLOS, Articles 25(2), 211(3) and 22, will present a general barrier to autonomous ships if coastal States decide that they do not want autonomous ships or certain types of autonomous ships in their waters.

UNCLOS, Article 94(4)(b), requires all ships to be: ‘in charge of a master and officers who possess appropriate qualifications. It is unclear how a fully autonomous vessel would be able to meet this obligation.

UNCLOS, SOLAS and the Convention on Salvage stipulate the master’s obligation to ‘render assistance’ or to ‘provide assistance’ to persons in distress at sea. Again, it is unclear to what extent an unmanned vessel would be able to comply with this requirement.

Regulation of access to economic resources, including on the deep seabed and in the water column, fishing, and the protection of resources such as undersea cables

7. In light of these challenges, is UNCLOS still fit for purpose? Can or should UNCLOS be renegotiated to better address these challenges?

Much has changed since UNCLOS 1982 came into force in 1994, such as: geo-political spheres, exploration and exploitation of ocean resources, environmental and climate change concerns, the growth of flags of convenience, technical advances now leading to developments in autonomous ships, etc.

Nautilus proposes that the UK should now lobby internationally for a high level review and assessment of UNCLOS, with a view to amendments being made to bring it into the twenty-first century, and, ensure that the lessons of the Covid-19 experience are learnt, notably, that seafarers are never again denied their basic social and employment rights, and, that ships are subject to effective jurisdiction and control, as required by Articles 91 and 94.

UK’s Maritime Strategy

8. What is your assessment of the UK’s policy and practice within the current legal framework of the international law of the sea? Are the Government currently working to address any of the challenges outlined above?

There is currently no evidence of any current work. However, the recent announcement by the Chancellor of the Exchequer, that the growth of the UK Ship Register is a priority for the government, should be scrutinised closely, to ensure that the stated goal of bringing more inward shipping investment to the UK, is not a mechanism to turn the UK into another flag of convenience.

9. What should be the priorities for the UK Government regarding the future of UNCLOS and the international law of the sea? In what areas can or should the UK be a leader?

The UK is still one of the world’s leading flag’s in terms of quality. It should not stand-by while low-quality flags of convenience corrode effective governance of shipping and gain a competitive advantage through their de-regulatory agendas.

The MLC, on which the UK was a major player, not only seeks to establish a level playing field within its area of competence, but to also drive continuous improvement in the social and employment conditions of seafarers. The UK should lobby with other high-quality flag States, for the this levelling-up of standards to be extended into other areas of international maritime law, such as UNCLOS. The UK should use its influence through other UN bodies, such as the IMO and the ILO, in pursuit of this aim.

10. What will be the most important international partnerships and alliances for the UK in addressing these challenges and upholding its interests with regards to the law of the sea?

11. In light of the challenges posed by climate change to the provisions of UNCLOS, what considerations should be given to the law of the sea during and after COP26, and what should be the position of the UK Government?

Received 12 November 2021