Joanna Szuminska, alumna of the University of Sussex School of Law, Politics and Sociology – Written evidence (UNC0034)

Joanna Szuminska’s Background

I am a recent graduate of International Law LLM at the University of Sussex. During the course, I developed an expertise in International Environmental Law and International Investment Law. My comments were solicited as I focused on the interaction between UNCLOS and the currently under negotiations treaty on marine biodiversity beyond national jurisdiction in my Masters’ dissertation. Hence, given responses adopt an environmental perspective.

This evidence is a response to the following questions:
Question 1: What have been the main successes and accomplishments of UNCLOS over the past 40 years?

Question 2: Which countries are the key international actors influencing the international law of the sea? What are their approaches toward UNCLOS?

Question 3: What are the other important international agreements and treaties which complement UNCLOS?

Question 4: In light of these challenges, is UNCLOS still fit for purpose? Can or should UNCLOS be renegotiated to better address these challenges?

Question 5: 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?

Main Evidence

The main successes and accomplishments of UNCLOS over the past 40 years

1. First of all, as stated by professor Evans in his oral evidence, the mere fact of existence of UNCLOS is a circumstance worth appreciation.[1] The Convention was signed after a long process of negotiations which included three successive Conferences on the Law of the Sea,[2]  with first efforts toward codification of International Law, including the Law of the Sea, taken even earlier. Although the initial term used by Ambassador Tommy T B Koh to describe UNCLOS – ‘constitution for the oceans’  – is at present being contested,  it successfully describes the comprehensive character of this legally binding international agreement.[3]

2. During the Convention’s close to 40 years lifespan, with approaching in three years the 30th anniversary of its entry into force, it has provided provisions applicable to resolve a plethora of legal arguments between States relating to the Law of the Sea: before the International Court of Justice (ICJ), other international courts and arbitration tribunals, as well as before its own body – the International Tribunal for the Law of the Sea (ITLOS). Judging by the amount of pending cases and a rising pace of new disputes arising,  it can be concluded that the Convention is not yet a thing of the past and still has a role to play.

3. Another accomplishment of UNCLOS is its almost universal participation which further proves that there is an immense need for an agreement of this sort. The fact that a significant proportion of it is now agreed to represent international customary law should be considered as an ultimate success of the Convention. In the context of International Environmental Law, UNCLOS requires all Member-States to abide by the rules introduced by any local environmental organisation, a clause significantly increasing an application of laws on protection of marine environment worldwide.  Moreover, those regulations are now accepted as international customary law, and therefore, they bind all existing States, regardless of whether they are Members to the Convention.[4]

4. Finally, the Convention has created a forum for negotiations of further agreements, the need for which has arisen after UNCLOS had entered into force. The early examples include two Implementation Agreements,[5] and the currently under negotiations new BBNJ Treaty,[6] which are discussed further. Thanks to the flexible approach and an openness toward change, the Convention can accommodate the upcoming challenges without a need to be renegotiated.

The key international actors influencing the international law of the sea and their approaches toward UNCLOS

5. Due to the immense importance of the oceans for global trade, transport, and resources, all countries with thriving economies are actively involved in matters relating to the sea. As common for many environmental issues including the protection of marine environment, countries can be divided into two groups: States who, at least on paper, attempt to introduce greater protection, and other States whose focus is still set on economic exploitation of oceans and might agree to abide by stricter rules only as a trade-off when they spot an opportunity for profit in the final account; they are not willing to introduce any measures just for the intrinsic value of marine environment. Not surprisingly, large naval powers and those involved in large scale fishing demonstrate sceptical stance; with the European Union, and States oriented toward environmental protection of the ocean, seeking strong instrument on conservation. Nevertheless, no efforts should be spared to hold a dialogue with those more sceptical States because, as seen in the past, often even the least keen toward environmental protection are ultimately willing to compromise.[7]

6. Moreover, although the largest coastal state Parties to UNCLOS represent the most potent influencers, there are many exceptions from this rule. The most obvious is the United States who undoubtedly has considerable influence on the International Law of the Sea but consistently refuses to join the Convention. Although it is unclear whether it will join the BBNJ Treaty, recent expansion of the Papahānaumokuākea Marine National Monument reveals a positive attitude toward large MPAs, therefore it is reasonable to expect the representative of the US to act accordingly when it comes to signing the new agreement.

7. In the context of the upcoming treaty, particularly important is the stance of Chile, who has recently been actively promoting and establishing many MPAs. Speaking on behalf of Like-Minded Latin American States, the Chilean representative stressed the need for ‘cooperation and the coherence of measures taken by other instruments, bodies or legal frameworks’.[8]

8. There are also examples of relatively small, landlocked States actively involved in the protection of marine environment, like the Czech Republic, who in 2014 was granted consultative status and is therefore entitled to co-decide the future of Antarctica, including its surrounding waters, and hosted the Antarctic Treaty Consultative Meeting in 2019.[9]

9. The UK’s position is analysed in the response to the last question.

The other important international agreements and treaties which complement UNCLOS

10. Leaving on the side the aforementioned Implementation Agreements which have already been widely analysed and discussed by scholars, close attention should now be given toward the new BBNJ Treaty. Despite the fact that climate change is at present the most ‘popular’ environmental issue, we are at the edge of the sixth mass extinction,[10] and a biodiversity crisis – vastly present within the marine environment, should not be pushed aside in confrontation with the burning issue of global warming. In fact, those two problems are interconnected and global leaders should focus on solving both problems simultaneously to keep the Earth in conditions habitable for humans. 

11. The BBNJ Treaty’s main goal is the protection of marine biodiversity in areas beyond national jurisdiction – the high seas - by introducing more detailed and applicable provisions on the subject in comparison to UNCLOS Part XII. It should therefore be highlighted that the provisions under negotiations are not in breach of UNCLOS but are truly implementing the existing provisions – in contrary to the first two implementing agreements. New regulations introducing the concept of marine protected areas in the high seas represent a good example of that. The HSMPAs trigger a discussion about the relationship between this new environmental tool and the well-established principle of the Law of the Sea - the freedom of the high seas which is clearly established by UNCLOS in Article 87(1).

12. The argument that the concept of HSMPA breaches the aforementioned principle was first raised by Russia when two HSMPAs in the Antarctic Ocean were negotiated, and although a doctrinal analysis of UNCLOS’s provisions demonstrates that the principle of freedom is not absolute and the establishment of HSMPAs is a legitimate environmental tool, States sceptical toward the establishment of future HSMPAs – which constitutes one of the main goals of the new treaty – might use that argument again in the future negotiations which, even if finally overcome, will cause additional delays in their establishment. It is therefore crucial that the new agreement includes a concrete clause stating that HSMPAs are a legitimate environmental measure and do not breach the principle of the freedom of the high seas.

In light of modern challenges UNCLOS is still fit for purpose and it does not need to be renegotiated

13. Thanks to its comprehensive character and an ability to be adjusted if necessary by additional implementation agreements, UNCLOS is still fit for purpose, despite the modern challenges.

14. The new BBNJ Treaty and the momentum associated with it proves that, at least from the environmental perspective - but also generally because as noticed by professor Evans, the great era of international treaty making is at dusk so it is doubtful that States would now succeed again in negotiating such a comprehensive agreement - UNCLOS represents an efficient starting point for further, more detailed, adapted to present and upcoming challenges, and using developing modern technologies implementing agreements.

15. Also, the time-consuming, difficult negotiations still underway in relation to the new treaty give us a glimpse of how arduous the process would be to renegotiate the whole UNCLOS. It appears to be much more sensible to adapt the existing Convention in an evolutionary instead of revolutionary way, in particular when considering the amount of work already put into the former approach. Unfortunately, judging by the amount of square brackets in the revised draft text of the BBNJ Treaty indicating the amount of controversial issues still unresolved between negotiating States, it is hard to predict whether the fourth negotiating session, currently planned for the beginning of 2022, will deliver the final text of the treaty, as supposed to according to the schedule.

16. Nevertheless, it is reasonable to say that we are approaching the final stage of negotiations, and assuming optimistically that the new treaty will quickly achieve the amount of ratifications required for its entry into force, we can expect to have a treaty on the protection of BBNJ in force soon. It is because States’ readiness for the new agreement assumed from: the number of States involved actively in the negotiations process, at present almost universal participation in UNCLOS despite a ‘slow start’ (there is a twelve years gap between a sign date and an in force date), and currently existing momentum toward the protection of the oceans.

17. Moreover, successful negotiations of the BBNJ Treaty might in the future encourage similar efforts toward an instrument relating precisely to the issue of the oceans and climate change. As the Chair of the Framework Convention on Climate Change Subsidiary Body for Scientific and Technological Advice summarised its informal report from April 2021, ‘Urgent integrated action is needed to respond to climate change and protect and restore nature, and with that, to secure our health, our ocean’s health and our planet’s health.’[11] The importance of the ocean in the context of the climate change cannot be overestimated - being the largest “sink” for carbon dioxide it represents an invaluable tool in mitigating climate change, but it is also badly affected by global warming, with major consequences including ocean’s temperature rise, sea-level rise, and acidification, all resulting in increased risk of species extinction. This dual role should be highlighted and deserves a dedicated international agreement negotiated under the auspices of the United Nations and the UNCLOS regime.

The priorities for the UK Government regarding the future of UNCLOS and the international law of the sea. Areas in what the UK should be a leader

18. The UK should promote the new BBNJ Treaty as it has itself established many MPAs in its territorial waters, is one of the most influential Parties to UNCLOS, and has been working proactively in the negotiations.[12] Moreover, the UK should use its legacy to be a leader in relation to the promotion of establishment of MPAs in the high seas, as it was after a British proposal that the first area-based management tool of this kind was established in the Ross Sea region.

19. Also, after hosting COP26, the UK should emphasize the two-sided relationship between climate change and the oceans – the oceans’ suffering caused by climate change, and its potential to facilitate the fight against global warming. The UK should use the momentum gained at the COP26 to ensure a prompt completion of the BBNJ Treaty negotiations, widespread ratification of the new agreement, and an increase in focus on the oceans’ health in all discussions relating to climate change.

Received 12 November 2021