Dr Philipp Kastner LL.M, Senior Lecturer, Law School, University of Western Australia – Written evidence (UNC0029)

Making UNCLOS fit for 21st century challenges:

enhancing cooperation to protect the common heritage of humankind

Introduction

1. This submission suggests that UNCLOS has important shortcomings and should be renegotiated. It focuses on some of the key challenges, including the lack of enforcement of international and national regulations by flag states, the shortcomings of the current global fisheries system, rising sea levels, and deep seabed mining.[1] It suggests that a more collaborative and less state-centric approach is needed, drawing on the notion that the oceans are part of the common heritage of humankind.

2. While I assume sole authorship and responsibility for this submission, it is informed by the extensive discussions with and the research carried out by several cohorts of postgraduate students at the Law School of the University of Western Australia. These students come from all parts of the world and have a variety of disciplinary background, such as law, international relations, and science. In our seminars, these students have often formulated important and even radical critiques of the existing legal framework governing the oceans, which clearly has important shortcomings. This submission echoes some of these suggestions, thus seeking to give voice to the future generation of law of the sea experts and their concerns.

Addressing the deficiencies of the flag state system

3. The heavy, almost exclusive, reliance on flag states for the enforcement of international and national regulations has serious deficiencies. Article 94 of UNCLOS provides that ‘[e]very State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag’. However, the registration process itself has remained unregulated, which leaves significant discretion to states and often means that vessels do not have a genuine link to their flag state.

4. Many states, especially those commonly referred to as ‘flags of convenience’ states, are unwilling or unable to verify the information provided by the vessels that fly their flag, such as with respect to compliance with environmental and safety regulations. This lack of control and enforcement of regulations facilitates illegal, unregulated and undocumented (IUU) fishing and increases the risk of accidents, including major oil spills. The lack of effective regulations – or lack of their enforcement – governing labour conditions in the shipping and fishing industries also means that modern slavery at sea is prevalent.[2]

5. It is time to consider other avenues, since previous attempts to strengthen the link between vessels and their flag states have failed, including the 1986 Convention on Conditions for Registration of Ships (which never entered into force). The most effective system would constitute in a genuinely international registry, overseen by an international agency or authority, such as the International Maritime Organization (IMO). All commercial ships would need to report to this body on their compliance with international regulations and standards, including with respect to safety, protection of the environment, and labour conditions.

6. Strengthening the jurisdiction and control of port states could prove a useful alternative until the significant political will that will be needed to establish such an international registry materialises. Currently, there are currently few incentives for port states to enforce international regulations, which is a time-consuming and costly endeavour. It would therefore be useful to create a new international legal obligation according to which states not only can but must inspect vessels that enter their ports and carry out genuine investigations into the compliance with international regulations. This could help close some of the loopholes of the current system.

7. It should be noted that the main disincentive, namely the costs associated with such inspections and investigations in a highly competitive market, would be lessened if the obligation is borne by all port states, and hence distributed evenly. Moreover, these costs should not be considered as newly created ones, but rather as shifting from hidden, externalised costs carried by vulnerable people and the environment, to costs that are distributed more evenly among all those who benefit from maritime trade and the exploitation of marine resources.

Creating a more effective fisheries system

8. The UNCLOS regime has not been successful in protecting marine living resources. While additional treaties and regional fisheries organisations have sought to address the problem of overfishing, a genuinely international regime is needed to avoid further depletion of the oceans. The current system, which privileges the national interests of coastal states over a more comprehensive management approach, is not sustainable.

9. There are three main issues with the current system:

1. UNCLOS leaves too much discretion to coastal states in setting catch quotas in the waters under their jurisdiction. It is worth noting that most fishing continues to take place within 200 nautical miles from the coast, i.e. in the exclusive economic zones of coastal states, even if the commercial fishing industry has increasingly moved into the high seas because of overfishing in states’ exclusive economic zones.
2. UNCLOS does not genuinely attempt to regulate the exploitation, management and protection of marine living resources – and the environment more generally – in areas beyond national jurisdiction, i.e. in the high seas. 
3. Illegal, unregulated and unreported (IUU) fishing, an industry that is worth billions annually, is an increasing problem that coastal and flag states are unwilling or unable to tackle.

10. A more effective system is therefore needed to protect the marine environment and effectively manage the exploitation of natural resources, including via regulatory and oversight body. An international organisation or authority, similar to the International Seabed Authority, should be established. Part of its mandate could be the facilitation of genuine cooperation between states and the issuance of recommendations and binding guidelines. While this approach could appear like a costly endeavour and mean that states would seemingly lose some sovereign rights, it will, in the long run, be more beneficial to all than the current system. Indeed, it is only in the very short term that some states, including the UK, will continue to benefit from the current system by exploiting living marine resources, which is often done above sustainable levels and hence not sustainable.[3] Moreover, exploiting the natural resources of the oceans should not be considered a right but rather a privilege that comes with responsibilities.

11. As an additional measure, a moratorium on industrial fishing in the high seas would be valuable, as called for by eminent scientists.[4] This would reduce overfishing and allow stocks to recover in the zones closer to the coasts,[5] which would be particularly beneficial to coastal populations that depend on fish and seafood as their main source of protein.

Mitigating the effects of rising sea levels

12. Rising sea levels pose significant threats to coastal states, including the UK, and even an existential threat to low-lying island states. These threats were not anticipated when UNCLOS was negotiated in the 1970s. In any event, the law of the sea could not prevent climate change by itself. As is well known, to halt – or at least slow – the rise of sea levels, urgent global action on climate change is needed. Since such action may not be forthcoming quickly enough, it is worth exploring ways in which the law of the sea could mitigate some of the negative effects on coastal states, and in particular on low-lying island states.

13. UNCLOS does not contain any provisions on shifting coastlines – and potentially the disappearance of zones under the jurisdiction of coastal states – because of rising sea levels due to climate change. This is why coastal states could face a double loss: they will not only lose land that ends up being submerged, but also the marine spaces that this land had created. However, the affected zones, in particular the exclusive economic zone, are of vital importance and an important source of revenue for many of these low-income states. It would seem highly unfair to cut them off from this source of revenue, which will, moreover, be sorely needed to help deal precisely with the impact of climate change on local populations and ecosystems.

14. To address this double loss, it should be agreed that there is no legal obligation to redraw baselines because of rising sea levels. This would be beneficial to all coastal states, including the UK, and especially to low-lying island states. The legal fiction that land determines marine spaces would hence be maintained, even if the land in question ends up being submerged.

Banning deep seabed mining

15. It is undisputed that deep seabed mining bears inherent risks, even if the International Seabed Authority has adopted draft regulations on the exploitation of mineral resources in the Area that seek to limit any potential impact on the marine environment. This is why a call for a moratorium on deep seabed mining was issued at the World Conservation Congress in September 2021,[6] which should be fully be supported, including by the UK.

16. The uncertainty and unknown risks surrounding deep seabed mining are indeed significant and do not outweigh economic considerations. Humanity should be able to survive and strive without further polluting the oceans and potentially destroying yet another part of this planet. The principle that the oceans, and the ocean floor in particular, are ‘the common heritage of mankind’, as stipulated in article 136 of UNCLOS, should be respected and further strengthened. 

17. A recent judgment, issued in September 2021, by the Supreme Court of New Zealand is insightful in this context (even if it concerns a mining project in New Zealand’s exclusive economic zone/continental shelf, and hence within the national jurisdiction of New Zealand). The Court found, among others, that the decision-making committee of New Zealand’s Environmental Protection Authority ‘did not comply with the requirement to favour caution and environmental protection’, which is particularly important ‘if there is uncertainty as to the information available.’[7] Inspired by this, the precautionary principle should inform even more strongly the legal regime governing the Area.

Reducing global inequalities

18. UNCLOS has favoured developed states and has not sufficiently allowed low-income states to benefit from the oceans, even if it sought to achieve equitable solutions and to make all states benefit from the resources of the oceans. For instance, more developed states have been able to invest in distant-water fishing fleets in order to exploit more and more marine living resources, including in the high seas; this option is not available to low-income states. A new framework should take such inequalities into account and seek to enhance equity and redistribution at the global level.

19. A further example of this inequity consists in extended continental shelf claims, which involve complex submissions to the Commission on the Limits of the Continental Shelf. While Japan, for instance, reportedly spent more than $500 million to prepare its submission,[8] low-income states do not have the means to prepare similarly sophisticated submissions. This situation must be remedied, either by further supporting low-income states to prepare their submission, or, as suggested above, by banning all exploitation of natural resources on the ocean floor, including on the continental shelf beyond 200 nautical miles.

Clarifying rights and obligations pertaining to safety at sea and maritime security

20. The well-established customary international law duty to render assistance at sea, codified in article 98 of UNCLOS and further specified in the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention on Maritime Search and Rescue (SAR) must be taken more seriously by all states. Immigration policies and national security considerations must not endanger life at sea, whatever the circumstances, and international human rights must be respected, including the obligation of non-refoulement. This also means that search and rescue operations should not be used – or abused – to prevent so-called irregular migration. The existing legal obligations should be clarified, from the general applicability of international human rights law on the high seas to more specific issues, such as what the obligation to deliver those rescued to a ‘place of safety’ (as stipulated in article 3.1.9. of SAR) implies.

21. Moreover, additional clarity on the legality of military exercises in the oceans and innocent passage of warships would be helpful. Reconsidering UNCLOS in this respect should build on the principle stated in UNCLOS that the high seas and the Area ‘shall be reserved for peaceful purposes’ (articles 88 and 141), which would contribute to the de-militarization of the oceans. More specifically, it would be important to remove the threat – perceived or real – that military exercises may represent, in particular when they are conducted in the exclusive economic zone of another state without the latter’s consent.

Towards a more cooperative and less state-centric approach

22. A more cooperative and less state-centric approach is urgently needed to deal with the issues raised above. In particular, the zonal approach, which consists in drawing highly artificial lines in the oceans to delimitate areas under the jurisdiction of coastal states, has serious flaws and must be reconsidered. A more sustainable and just approach can draw on the idea that the oceans, as a whole, are part of the common heritage of humankind, as it is already recognised in the case of the deep seabed.

23. While some states, including the UK, may be concerned that such a shift could be contrary to their national interests, it is the only viable option in the long term to deal with the challenges of the 21st century, including climate change, the management and protection of marine resources, as well as safety at sea and maritime security. In driving, or at least supporting, such change, the UK should be cognisant of the fact that other, more powerful states benefit disproportionately from the current freedoms and discretions granted to states.[9]

24. Since the United States are not a state party to UNCLOS, and other powerful states, like China and Russia, not drawn to multilateral action in this context, the UK, as a permanent member of the UN Security Council, is in a unique position to assume a strong leadership role in renegotiating UNCLOS and in paving the way for a more sustainable and just legal framework in the context of the law of the sea.

Received 12 November 2021