Foreign, Commonwealth and Development Office – Written evidence (UNC0028)             

UN Convention on the Law of the Sea (UNCLOS)

Summary

1. This note sets out written evidence from the Foreign Commonwealth and Development Office (FCDO) in submission to the Lords Select Committee on International Relations and Defence inquiry entitled ‘UNCLOS: fit for purpose in the 21st century?’. A number of FCDO teams and other government departments have contributed to this product.

2. The note describes key features of UNCLOS, how these have benefitted the UK and the international community, the challenges that exist in implementing UNCLOS and action the UK is taking to implement, uphold and strengthen UNCLOS. At the start of each section, we have indicated which of the Committee’s questions it is answering. We have indicated in bold at the end of certain paragraphs where they are relevant to specific Committee questions.

3. The 1982 UN Convention on the Law of the Sea provides the comprehensive legal framework for all activities, which take place on, in and under the ocean. Customary international law and treaties constitute the main sources of the law of the sea, and UNCLOS is a key but not the only instrument within that broader body of law. As a framework treaty, a wide range of other laws and international institutions underpin its implementation and supplement its provisions.

4. UNCLOS is a major achievement of diplomacy and international law making with 320 Articles and 9 Annexes providing a detailed codification of the law of the sea. A significant part of its value lies in the balance that it strikes between the interests of Coastal States and the interests of major maritime powers. Although implementation challenges exist, UNCLOS has made a significant contribution to global peace, prosperity and security by providing consistency and certainty concerning the governance of the ocean.

5. The UK has benefitted in a 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.

6. Although UNCLOS has been in force for nearly three decades, challenges remain in its implementation. Despite the environmental provisions of UNCLOS, the health of the ocean has significantly degraded due to human action, including from industries directly regulated by UNCLOS. A number of countries continue to make excessive claims to maritime entitlements and to challenge the freedoms enshrined in UNCLOS, while themselves benefitting from those freedoms. Monitoring activity in maritime areas beyond national jurisdiction and enforcing compliance with UNCLOS (for example by Flag Sates) and other international laws and regulations is challenging.    

7. Developments in technology, changes to the physical environment, improved scientific understanding and shifting geopolitics all offer opportunities and challenges for the UK and the international community with respect to ocean governance. It is important that international law making and implementation acknowledges and responds to these changing circumstances. The view of the Government is that UNCLOS continues to provide a clear and comprehensive legal framework within which States are able to cooperate to address current and emerging issues. Attempting to renegotiate UNCLOS would be unlikely to attract support from many states, and risks undoing the careful balance struck in the existing text as well as many of the benefits we currently enjoy. Where there are matters that require further legal rules, it has been shown that this can be achieved by negotiating supplementary implementing agreements to UNCLOS, or through additional agreements, which rely on the framework provisions of UNCLOS.

8. It is a priority for the UK Government to implement, uphold and strengthen UNCLOS and it is central to delivering some of the goals of the Integrated Review. UNCLOS provides a framework for developing more detailed treaties and instruments that tackle areas of interest to the UK such as the Protocol against smuggling migrants, fisheries instruments, instruments concerning pollution and conservation. We are championing the development of a new Implementing Agreement on marine biodiversity of the High Seas and continuing to work through the International Maritime Organisation, Regional Fisheries Management Organisations and other bodies to develop regulations, guidance and best practices that support safety, security and conservation of the ocean. We are also deploying our military assets to uphold freedoms where they are challenged, and delivering capacity building to countries to support effective and sustainable management of their marine zones. 

9. The regulatory scope of UNCLOS is very wide. This evidence note focuses on the key issues and the questions of the Committee.  

What is UNCLOS?

This section addresses questions 2, 3, and 5.

10. The UN Convention on the Law of the Sea is a key part of international law. It applies to the entire volume of the ocean and the seafloor, which covers 71% of the Earth’s surface and provides 95% of the habitable space on the planet.

11. UNCLOS provides the legal framework for all activities, which take place on, in and under the ocean. It regulates transportation and navigation, the laying of cables for communication and energy. It provides a mechanism for establishing maritime zones and for the delimitation and delineation of maritime boundaries. It contains rules for the management of biological and mineral resources of the ocean. It has provisions for the protection and preservation of the marine environment, the conduct of scientific research and the development and transfer of marine technology. 

12. The UN Convention on the Law of the Sea (UNCLOS) was negotiated between 1973 and 1982. For states parties it prevails over a number of previous conventions and codified many rules and practices that had developed over the centuries that had become part of customary international law. It came into force on 16 November 1994, when Guyana became the 60th State to ratify UNCLOS. The UK acceded to UNCLOS on 25 July 1997. UNCLOS currently has 168 Parties. It applies to coastal and landlocked States, whose rights are explicitly recognised in UNCLOS. UNCLOS has been described as the “Constitution for the ocean”, embodying a delicate balance of rights and obligations as between Coastal States and Flag States.

13. UNCLOS established three institutions to support its implementation:

• The International Seabed Authority (ISA), which is the forum for discussion and agreement on the management of the mineral resources of the seabed and ocean floor and subsoil thereof in Areas Beyond National Jurisdiction (ABNJ), known as the Area;
• The International Tribunal on the Law of the Sea (ITLOS), which is one of the dispute resolution mechanisms under UNCLOS;
• The Commission on the Limits of the Continental Shelf (CLCS), which assesses submissions by countries on the limits of their continental shelf beyond 200 nautical miles.

[Q5]

14. There are a number of other international bodies not established by UNLCOS mandated to regulate ocean activity within the framework of UNCLOS. The most significant of these are the UN General Assembly, the International Maritime Organisation (IMO), based in London, the Food and Agriculture Organisation (FAO) and the Regional Fisheries Management Organisations (RFMOs). The IMO is responsible for taking measures related to the safety and security of international shipping and to tackling pollution and other environmental harms from ships. The RFMOs provide a mechanism to manage straddling and highly migratory fish stocks shared between countries and in the High Seas. [Q5]

15. Other important organisations are the International Whaling Commission, the International Oceanographic Commission of UNESCO, which does some work to support marine scientific research under UNCLOS, the International Hydrographic Organisation which sets standards for hydrography and the publication of navigational charts, and the World Trade Organisation, which addresses harmful fishing subsidies. [Q5]

16. There are currently two Implementing Agreements adopted under UNCLOS:

• The Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (known as the Part XI Agreement) amended the provisions of Part XI of UNCLOS, which set out the regime for the management of the Area by the International Seabed Authority. The Part XI Agreement was negotiated as few Developed States had ratified UNCLOS due to discontent with the original regime in Part XI of UNCLOS.

• The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA). The objective of UNFSA is to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks. It gives effect to the duty to cooperate established in Part V (EEZ) and Part VII (High Seas) of UNCLOS.

17. A wide range of other treaties support UNCLOS. These include:

• Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1975)
• Regional Seas Conventions[1]
• UN Framework Convention on Climate Change (1994)
• Convention on Biological Diversity (1993)
• Safety of Life at Sea Convention (SOLAS) (1974)
• International Convention for the Prevention of Pollution from Ships (MARPOL) (1973)

[Q4]

18. To enable implementation and enforcement of its provisions, UNCLOS mainly relies on the jurisdiction provided to Coastal States and Flag States. Coastal States enjoy the rights associated with their maritime zones but also have obligations such as protecting and preserving the marine environment. Flag States operate registers of merchant shipping and fishing vessels. These ships operate under the laws of the Flag State. The Flag State is responsible for ensuring that ships that are entitled to fly its flag are operating in accordance with the duties of the Flag State as set out in UNCLOS. The IMO has developed a range of initiatives and agreements to strengthen implementation of Flag state control and jurisdiction.  [Q3]

19. An important development in UNCLOS was the creation of a compulsory dispute settlement regime to encourage the peaceful settlement of disputes relating to its interpretation or application. States can make a choice to have their disputes considered either by the International Court of Justice, the International Tribunal for the Law of the Sea, or an arbitral tribunal, which is also the default in case states have not chosen the same procedure. Alternative options are available for certain categories of disputes. [Q3]

20. Many States are influential with respect to UNCLOS. States such as members of the P5[2] have wide-ranging economic, security, scientific and environmental interests that span the regulatory scope of UNCLOS. These States are active and influential in all the main bodies that address UNCLOS matters. Although the US is not a party to UNCLOS, it considers that many of the provisions of UNCLOS represent customary international law. Other States’ influence may derive from having large shipping companies (e.g. Denmark, Japan) or operating large ship registries (e.g. Panama, Liberia).  Other States are active on UNCLOS because they have large marine areas with high levels of biodiversity under their jurisdiction, such as the Small Island Developing States. [Q2]    

Benefits of UNCLOS

This section addresses question 1.

21. UNCLOS is a major achievement of diplomacy and international law making with 320 Articles and 9 Annexes providing a detailed codification of the law of the sea. A significant part of its value lies in the balance that it strikes between the interests of Coastal States and the interests of major maritime powers. Although implementation challenges exist, UNCLOS has made a significant contribution to global peace, prosperity and security by providing consistency and certainty concerning the governance of the ocean.

22. UNCLOS enables the effective functioning of the transport, communications and energy connectivity that underpins the global economy[3].  Under UNCLOS, ships of all States have the right, subject to conditions laid down in UNCLOS, to:

• innocent passage through the territorial sea (0-12 nm from baseline) or archipelagic waters;
• freedom of navigation and overflight in the exclusive economic zone (12-200 nm from baseline);
• freedom of navigation on the High Seas (beyond the outer limits of areas within national jurisdiction);
• transit passage in straits used for international navigation; and
• archipelagic sea lane passage through certain sea lanes and air routes in and over archipelagic waters.

23. UNCLOS does not use the term ‘freedom of navigation’ for all of these rights (e.g. innocent passage and transit passage are not as wide in scope in terms of permitted activity as freedom of navigation).  Freedom of navigation (FON) is the term, which is sometimes given for ease to the bundle of rights and freedoms that warships, merchant ships and pleasure ships, aircraft and submarines enjoy when navigating on, over and under the world’s seas. 

24. To reach their destinations many ships may pass through straits (narrow stretches of sea between land) that connect areas of the High Seas or EEZs with other areas of High Seas/EEZs. UNCLOS protects the sovereignty and jurisdiction of the bordering States over their maritime zones in straits while also requiring them (unless otherwise regulated by long-standing convention) to allow transit passage, subject to certain conditions. These routes are often shorter and more cost-effective for shipping companies and therefore lead to cheaper goods more quickly delivered.

25. UNCLOS provides rules and a process for States to lawfully establish their maritime zones and to deposit the details with the United Nations. The main maritime zones to which Coastal States are entitled are internal waters, the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf. Once a State’s zones are established it generates clarity in their rights and obligations concerning management of the resources in these areas. This is helpful for the economic development of countries. The areas beyond national jurisdiction (ABNJ) are known as the High Seas. UNCLOS also establishes the Area (the seabed in ABNJ)

26. UNCLOS provides rules and a process to delimit the boundaries between maritime zones of States promoting peaceful cooperation amongst States. This is a legally and technically complex area and politically sensitive as it concerns sovereignty and sovereign rights.  Many potential boundaries therefore remain to be delimited. The metropolitan UK has established and delimited most of its maritime boundaries, which provides a basis for cooperation with nearby countries on a range of issues from fishing to border control. We also support the Overseas Territories in this regard, including recently supporting Anguilla to agree its maritime boundary with Antigua and Barbuda[4] in July this year, which both sides have recognised as a positive step for bilateral relations and the sustainable management of the ocean.

27. UNCLOS provides clear and detailed rules relating to the management of ‘The Area’, which is the portion of the seabed in areas beyond national jurisdiction. UNCLOS establishes the mineral resources of the Area as the ‘common heritage of mankind’. This means the minerals here cannot be exploited to benefit only individual States or companies but must provide wider benefits to human society, including the equitable sharing of economic benefits. This is of particular importance to developing countries. The International Seabed Authority provides a forum for countries to work out the detailed technical rules and guidance for exploiting the minerals and protecting the environment and sharing the benefits. Currently, activity is limited to exploration.

28. UNCLOS provides rules and a process for enabling the conduct of marine scientific research (MSR) in the maritime zones of other States. This leads to the improvement of human knowledge that helps us understand how the environment is changing and how we can manage it better. MSR provisions of UNCLOS have enabled, for example, the UK to cooperate with the Faroese, German, Norwegian and other partners to understand the Faroe-Shetland Channel, a key area for the exchange of oceanic waters between the Atlantic and Arctic Ocean basins.

29. This science has been key to understand the different time scales of variability in the sub-polar North Atlantic Ocean, how this variability is tied along the major circulation pathways, and how water properties and circulation patterns may change due to climate change. The data from the Faroe-Shetland Channel form one of the longest time series of ocean properties globally, and are a true international effort.

30. The IMO has developed a range of agreements, regulations and guidance that support the implementation of UNCLOS with respect to the safety, security and environmental impact of shipping:

• On safety, the “generally accepted international regulations” referred to in UNCLOS are the IMO’s safety Conventions. In this way the IMO’s instruments provide for a baseline standard regarding all aspects of a ship’s safety to ensure they are constructed to endure the conditions they are likely to experience, loaded safely and are provisioned with adequate safety equipment as well as being operated and run safely. Where a marine casualty occurs the IMO moves to address lessons learnt through regulatory change limiting the repeat of such casualties.

• On security, the amendment to the Safety of Life at Sea (SOLAS) convention 1974, to include the International Ship and Port Facility Security (ISPS) Code created a security framework involving cooperation between Contracting Governments and the maritime industry to detect threats and take preventive action as well as establish roles and responsibilities between parties. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 has ensured that appropriate action is taken against persons committing unlawful acts against ships and fixed platforms. Department for Transport run a capacity development programme to improve ISPS security at overseas ports where there is a significant UK interest in terms of passengers, trade and shipping. The programme currently undertakes work in 18 priority countries across Africa, The Middle East and Asia-Pacific.

• On environment, the clear structure of rights and responsibilities provided by UNCLOS underpins the development of globally binding, and universally applicable environmental controls for maritime activity through the IMO – notably, but not limited to, the International Convention for the Prevention of Pollution from Ships, 1973. UNCLOS supports the effective application of vessel design and operational standards that have been adopted at IMO regardless of a vessel’s flag State and has prevented the proliferation of incompatible port and coastal State requirements that would render international trade challenging.

• The UK played a prominent role in IMO negotiations leading to the formulation of the International Code for Ships Operating in Polar Waters (the Polar Code), adopted by the IMO in January 2017. This is a mandatory code for ships operating in Arctic and Antarctic waters. Subsequently, the UK has followed its obligations to implement the Regulations into domestic legislation. Part II-A of the Code, related to pollution prevention and operating in pristine environments, has been transposed through the Merchant Shipping (Prevention of Pollution by Garbage from Ships) Regulations 2020 (SI 2020/621). Part I-A of the Code, related to manning, training and safety requirements, will enter into force at the end of 2021, or early 2022.

[Q4][Q5]

Challenges of UNCLOS

This section addresses question 6.  

31. UNCLOS has been in force for nearly 30 years. During that time, the health of the ocean has significantly degraded despite the obligations in the Convention to ensure the conservation and sustainable use of the marine environment. Some harms to the ocean environment are associated with activities regulated by UNCLOS, such as fishing and shipping. Other harms such as pollution and the impacts of climate change are associated with predominantly land-based activities, which UNCLOS does not directly regulate. However, UNCLOS does place obligations on States to prevent, reduce and control pollution of the marine environment from land-based sources and from or through the atmosphere. UNCLOS also places obligations on States to cooperate to endeavour to establish global and regional rules to prevent pollution of the marine environment from land-based and atmospheric sources. Therefore, UNCLOS provides the legal framework for further work to be undertaken at the United Nations Environment Assembly to develop a new legal instrument to tackle marine plastic litter.

32. UNCLOS provides the legal framework for the management of fish stocks. Regional Fisheries Management Organisations (RFMOs) manage fisheries including those that straddle Exclusive Economic Zones, Exclusive Economic Zones and the High Seas and fisheries for highly migratory species like tunas, which are one of the world’s most valued species. However, pressures by human activities, such as marine pollution, Illegal Unreported and Unregulated (IUU) fishing and overfishing have caused serious depletion in High Seas fish stocks[5] . IUU fishing continues to be 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 jeopardises the very foundation of international efforts to promote better ocean governance and undermines efforts to manage fisheries properly.

33. Climate change, combined with other pressures such as pollution and overexploitation, is having a catastrophic impact on ocean health, and its ability to continue to provide functions critical to all life. The warming, acidification and deoxygenation of the ocean is changing the abundance and distribution of fish populations. This will affect the fishing opportunities of States, with some benefitting from increases and others suffering losses. This poses a problem in terms of food security and livelihoods; could be a potential source of friction between States and will be a significant management issue for Regional Fisheries Management Organisations.

34. Global warming is causing profound change in the Arctic. The melting of sea ice is opening up new, shorter sea routes for commercial shipping between Asia and Europe and increasing accessibility for resource exploitation. The UK recognises economic opportunities but is clear that they must be achieved within the framework of UNCLOS, and that we must work to protect the Arctic environment, and to prevent contraventions of the rules based international system on which global prosperity depends. Freedom of navigation on the High Seas and in the Exclusive Economic Zone must be safeguarded, as must the right of innocent passage through territorial seas, transit passage through international straits used for navigation, as well as adherence to the environmental provisions of UNCLOS.

35. Sea-level rise could affect the status of maritime zones and delimitation of maritime borders between States creating uncertainty surrounding the rights and obligations associated with maritime zones. Maritime zones are determined under UNCLOS by reference to coastal baselines. As sea level rises due to climate change, coastlines and the base points that are used to draw baselines may recede, disappear or change shape. This raises the question of whether the associated maritime zones should also change. This is a complex issue and currently the subject of consideration by the International Law Commission (ILC).

36. The Pacific Islands Forum (PIF) and the Alliance of Small Island States (AOSIS) have recently declared that UNCLOS imposes no affirmative obligation on States to keep baselines and outer limits of maritime zones under review nor to update charts or lists of coordinates once deposited with the Secretary General of the United Nations, and that such maritime zones and the rights and entitlements that flow from them shall continue to apply notwithstanding any physical changes connected to climate change-related sea-level rise. The government is carefully considering the PIF and AOSIS Declarations.

37. Under Article 94 of UNCLOS, States have jurisdiction over vessels that are entitled to fly their Flags. Such Flag States must maintain registers of vessels that fly their flag and ensure that these vessels comply with generally accepted international regulations, procedures and practices concerning safety including labour standards and prevention, reduction and control of marine pollution. Some Flag States do not exercise effective oversight of the ships on their register, leading to mistreatment of crew, the use of vessels for criminal activity such as drugs and arms trafficking, enabling of IUU fishing. Vessels engaged in unlawful activity often change the flag they fly to avoid enforcement action against them. The UK and a number of the Overseas Territories and Crown Dependencies operate ship registries. They cooperate within the framework of the Red Ensign Group to ensure British registries maintain the highest international standards. British registries are currently undergoing an audit by the IMO.

38. For the grant of an entitlement to fly a flag, UNCLOS provides that there "must exist a genuine link between the State and the ship." The purpose of this requirement to secure more effective implementation of the duties of the Flag State. There is currently no binding international framework to regulate the registration process itself. The 1986 UN Convention on Conditions for Registration of Ships establishes international standards for the registration of vessels in a national registry, including references to the genuine link, ownership, management, registration, accountability and the role of the flag State. However, the Convention has not received sufficient support from states and has not entered into force.    

39. Although States in general comply with the decisions made by compulsory dispute resolution mechanisms under UNCLOS, there are also cases where States reject the outcomes of arbitration. China, for example, has not accepted the decision of the Arbitral Tribunal of 2016 in a case brought by the Philippines with respect to maritime jurisdiction in the South China Sea. This is of concern to the UK as the Arbitral Award is binding on China and the Philippines and because preserving freedom of navigation in this region is essential to the UK’s economic and security interests, and that of our allies and partners. The UK is disturbed by reports of militarisation, coercion and intimidation in the South China Sea and is opposed to any action that raises tensions, increases the risk of miscalculation or hinders the chances of peaceful settlement of the disputes.

40. Mauritius has made use of UNCLOS dispute resolution mechanisms in an attempt to pursue its sovereignty claim over the British Indian Ocean Territory (BIOT). In 2010, it requested that an Arbitral Tribunal rule that the UK's establishment of a Marine Protected Area (MPA) around the territory was invalid on the basis that the UK should not be considered the coastal state. The Arbitral Tribunal held that claims relating to the status and rights of the coastal state concerned the question of sovereignty over the Chagos Archipelago which, as a matter not concerning the interpretation or application of UNCLOS, it did not have jurisdiction to decide. However, the Arbitral Tribunal found that the UK should have consulted with Mauritius on establishing the MPA. In 2021, ITLOS ruled in favour of Mauritius's right to negotiate BIOT's maritime boundaries with the Republic of the Maldives. The UK was not party to these proceedings, which can have no effect for the UK or for maritime delimitation between the UK (in respect of BIOT) and the Republic of the Maldives. 

41. Articles 79 and 112-115 of UNCLOS deal with the rights to lay submarine cables and the laws and regulations that States shall adopt to deal with breakages and injuries of submarine cables and pipelines.  Most States have not adopted national legislation to implement this obligation and in any case such legislation would only apply to ships flying its flag or its nationals who commit such acts.  So, often where a cable beneath the High Seas or EEZ is damaged by intentional or reckless conduct, no crime has been committed. 

42. Most breakages of submarine cables are caused by fishing activities or vessels dragging their anchors. Natural disasters such as undersea landslides and earthquakes can also cause damage. DCMS engage with industry over the protection and repair of cables and to encourage the installation of more cables to ensure resilience and route diversity. We are alert to State threats to cables and are working with allies on the mitigation of any threats.

43. Whilst the IMO continues to evolve the safety, security and environmental performance of international shipping there are a number of challenges:

• Keeping the regulatory framework in line with the pace of developing technologies. Traditionally, IMO has regulated in a prescriptive manner such that a ship must fulfil exact requirements in order to receive certification and be eligible to trade. Where technological advances are moving at a quicker pace this does not always allow novel methods of regulatory compliance. A good example of this has been the IMO’s consideration of regulating Maritime Autonomous Surface Ships (MASS), which IMO’s prescriptive regulations would in general preclude from operating.

• Technological change presents a challenge to the regulatory security regime for ships. MASS and their control centres will require changes to ISPS and traditional approaches to security. Furthermore, with increased connectivity the risk posed in the cyber domain to shipping persists and will only increase as threat vectors adapt and new vulnerabilities are exploited.

• The framework of rights and responsibilities provided by UNCLOS has resulted in some challenges at the IMO in relation to protecting areas of the sea beyond national jurisdiction from the negative impacts of shipping. This has prevented IMO from considering one proposal for protection (relating to the Sargasso Sea) as the majority of the area considered at risk was beyond member state jurisdiction.

44. Autonomous underwater vehicles have been operating for decades. These operations have been focused primarily in the realms of defence and marine research and there has been limited impact by these vehicles on wider maritime users. The increased interest in autonomy in the maritime, automotive and aeronautical arenas has renewed considerations of what is feasible within the underwater space. There will potentially be wider and more varied use of autonomous underwater vehicles in the future. This might cause issues with Article 20 of UNCLOS, which requires submarines and other underwater vehicles to navigate on the surface when exercising innocent passage in the territorial sea, in addition the expanded awareness and understanding of autonomy in all vehicles may mean there is an increased scrutiny on whether they can be governed by UNCLOS.

45. Developments in technology, changes to the physical environment, improved scientific understanding and constantly shifting geopolitics all offer opportunities and challenges for the UK and the international community with respect to the governance of the ocean. Notwithstanding the implementation challenges described above, it is the view of the Government that UNCLOS continues to provide a clear and comprehensive legal framework within which States are able to cooperate to address current and emerging issues.  Attempting to renegotiate UNCLOS would be unlikely to attract support from many states, risks undoing the careful balance struck in the existing text as well as many of the benefits we currently enjoy. [Q7]

46. Where there are matters that require further legal rules, it has been shown that this can be achieved by negotiating supplementary implementing agreements to UNCLOS, or through additional agreements, which rely on the framework provisions of UNCLOS. We are championing the development of a new Implementing Agreement on marine biodiversity and continue to work through the International Maritime Organisation, Regional Fisheries Management Organisations and other bodies to develop regulations, guidance and best practices that support safety, security and conservation of the ocean. We are also deploying our military assets to uphold freedoms, where they are challenged and delivering capacity building to countries to support effective and sustainable management of their marine zones.  [Q7]

Implementing, upholding and strengthening UNCLOS

This section addresses questions 8, 9, 10 and 11 Committee.

47. The Government published its Integrated Review[6] of security, defence, development and foreign policy on 16 March 2021 (the IR). The IR acknowledges the wide-ranging importance of UNCLOS and reaffirms the Government’s absolute commitment to upholding it as an essential enabler of global prosperity, security and a healthy planet. The IR also sets out the Government’s intention to combine its work on maritime security, the environment and trade, recognising the important interlinkages between these issues.

48. The IR puts tackling climate change and biodiversity loss as the top of our list of international priorities. As host country of COP26, the UK understands that ambitious action to tackle climate change is vital for the health of the ocean and that the conservation and sustainable management of the ocean, as provided for in UNCLOS, can contribute to achieving our climate goals. As part of our climate and biodiversity agenda, the Government is putting significant effort into securing a positive outcome in UN negotiations for a new legally binding agreement under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement). Such an agreement would provide for the establishment of marine protected areas (MPAs) in areas beyond national jurisdiction (ABNJ), which is necessary if we want to achieve protection of 30% of the global ocean by 2030 and tackle the impacts of climate change on the ocean.

49. The BBNJ Agreement will also create a modern and transparent regime for Environmental Impact Assessments for new activities in ABNJ, have provisions concerning the sharing of benefits of Marine Genetic Resources of ABNJ and provide capacity building support to developing countries. The UK supports the conclusion of an ambitious BBNJ Agreement as soon as possible – ideally at the final Intergovernmental Conference (IGC) now deferred to 2022 due to Covid-19. The UK is actively engaged in ongoing intersessional work given the delay and is encouraging all countries to play an active and constructive role in the various workshops and dialogues taking place 

50. A priority for the Government is to ensure the development of effective international regulations for the exploitation of minerals on the seabed in the Area. The FCDO leads the cross-Government participation in negotiations at the International Seabed Authority. 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. We will continue to press for the very highest environmental standards to be agreed and implemented by the International Seabed Authority.

51. Science is key to delivering the government’s vision that by 2030 the ocean will be effectively governed, clean, healthy, safe, productive and biologically diverse, linking resilient and prosperous coastal communities around the world, and supporting sustainable economic growth for the UK, the Overseas Territories and the Crown Dependencies. The Government will strengthen our marine science capabilities, contributing to the UN Decade of Ocean Science for Sustainable Development. Under our G7 Presidency, the G7 adopted the G7 UN Ocean Decade Navigation Plan establishing a framework through which the G7 will collaborate and advance our collective work on ocean science, ocean observing and ocean action throughout the Decade.

52. The Government is committed to continuing to work with stakeholders and through relevant international organisations, including the IOC, to ensure that the MSR regime established under UNCLOS is applied in a way that is responsive to changes in the technology including the increased use of autonomy. This issue has been placed on the agenda of the International Working Group of the UK’s Marine Science Coordination Committee, chaired by the FCDO, in order for the government to gain the insight and guidance of experts in the field as we continue to develop our policy.

53. The UK, working with allies and partners, uses a range of tools to promote and defend UNCLOS globally. These include public statements in support of UNCLOS, providing UK expertise for capacity building on maritime law and Royal Navy deployments, which serve to reinforce our commitment to maritime security, freedom of navigation and to championing the rules-based international system. Wherever the Royal Navy operates, it does so in full compliance with international laws, norms and rights to freedom of navigation provided by UNCLOS. Some recent examples:

• UK Carrier Strike Group. July and October 2021, the UK Carrier Strike Group navigated the South China Sea between planned activities and in accordance with international law (and five further Royal Navy ships have navigated the South China Sea previously since April 2018)
• HMS DEFENDER exercised the right of innocent passage through the territorial seas of Ukraine on 23 Jun 21.  Prior to this, the Russian Federation issued an unlawful declaration suspending the right of innocent passage in this area. Russian assets tracked DEFENDER however, the passage was completed in accordance with the rules of UNCLOS.
• HMS RICHMOND conducted a transit through the international waters of the Taiwan Strait on 26 Sep 21, upholding the principle of the freedom of navigation on the High Seas.
• HMS TRENT deployed in October 2021 to the Gulf of Guinea in support of regional maritime security priorities where she will conduct security patrols and support partner navies through capacity building by helping to develop key maritime skills such as boarding and searching of suspicious vessels, evidence handling and medical skills.
• Strait of Hormuz (SOH). Routinely, RN ships sail through the SOH in transit passage. The route used most frequently is the Traffic Separation Scheme (TSS) within Omani territorial seas, but of note, Iran as the other coastal State (and not a signatory to UNCLOS) does not accept the principle of transit passage. 

54. The UK is committed to reinforcing the primacy of UNCLOS in the South China Sea. On 3 September 2020, the then Minister for Asia put our legal analysis on the SCS on public record for the first time, objecting to Chinese claims we consider inconsistent with UNCLOS. We have reiterated this subsequently and where appropriate: in Note Verbales from the E3 to the UN’s Commission on the Limits of the Continental Shelf (16 September 2020), at the UNGA Law of the Sea debate (8 December 2020) and during a Defence Secretary speech in Vietnam (23 July 2021). The UK is also working closely with allies and ASEAN partners to build capacity in SE Asia on maritime law and security. This includes dialogues, training courses and conferences. We continue to raise concerns with the Chinese authorities about their actions, which contravene UNCLOS.

55. The UK is supporting developing States to build capacity to manage their marine areas in accordance with UNCLOS i.e. in a way that is sustainable, reduces criminality and improves safety and security. Through the £500-million Blue Planet Fund, the UK is supporting developing States to tackle Illegal, Unregulated and Unreported Fishing, protect critical marine habitats, establish and manage marine protected areas and reduce pollution.

56. 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 as most recently evidenced by the speech given by the Secretary of State for Defence during the debate on maritime security called during the Indian Presidency of the Security Council.

57. The UK continues to actively support the work of the IMO and is a leading voice in all discussions. In particular, the UK has been in discussions with other Member States and Industry representatives regarding the future need to evolve IMO’s regulatory structure to be more goal based allowing multiple methods to regulatory compliance. This can be seen in MASS where the UK has been one of the leading Member States in the work to date.

58. The IMO has provided guidance to administrations on considerations for cyber security. The UK is building on this and developing flag-specific guidance for British operators to include in their safety management processes. The UK is already exploring regulatory requirements, including security, for MASS and their operating centres and will work with IMO member states closely as this develops.

59. We are also promoting the BBNJ Agreement within the IMO as a means to address the challenges around areas beyond national jurisdiction as it could provide a framework that allows states at the IMO to properly consider protection of High Seas areas where needed.

60. As a responsible coastal state the UK wants to be a leader in sustainable fisheries. The UK participates in international forums to share best practice globally and press for effective regulation of fishing activities to deliver a sustainable ecosystems approach. The UK is committed to working closely with our neighboring coastal states including the EU, Norway and the Faroe Islands to manage shared stocks in a sustainable way and share fishing opportunities on a fair and scientific basis.

61. The UK is a member of five RFMOs: North East Atlantic Fisheries Commission (NEAFC), Northwest Atlantic Fisheries Organisation (NAFO), International Commission for the Conservation of Atlantic Tunas (ICCAT), Indian Ocean Tuna Commission (IOTC) and North Atlantic Salmon Conservation Organisation (NASCO). Through these RFMOs, the UK works with other States to manage shared fisheries sustainably. The UK is carefully considering the case for joining further RFMOs.

62. The UK plays an active role in other multilateral organisations such as the UN Food and Agriculture Organisation, Commission for the Conservation of Antarctic Marine Living Resources, and International Maritime Organisation to promote sustainable fishing, including specifically pushing for strengthened measures in preventing and deterring IUU fishing. The UK is an active member of the Agreement on Port State Measures (PSMA), which aims to prevent global IUU catches from being landed and therefore from reaching international and national markets. The UK recognises the urgent efforts needed to prohibit harmful fisheries subsidies that contribute to overfishing, overcapacity and IUU fishing. We commit to the prioritisation of concluding the ongoing WTO negotiations as swiftly as possible in order to ensure that an agreement is reached to deliver effective disciplines.

Received 12 November 2021

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