Professor Abbe E. L. Brown, Professor in Intellectual Property Law, Professor Marcel Jaspars, Chair in Chemistry and Dr Daria Shapovalova, Lecturer in Energy Law, University of Aberdeen– Written evidence (UNC0035)
UNCLOS: fit for purpose in the 21st century?
About 71 percent of the Earth’s surface is covered with water, with around 96 percent held in oceans, and around 80 percent of the volume of international trade in goods is carried by sea. Experts point out that the seas “have always been a source of power and wealth”, and nations have had to navigate through their ambitions to set clear maritime boundaries, while at the same time maintain an open transit and transport system for everyone.[1]
The UN Convention on the Law of the Sea (UNCLOS) was signed in 1982 and came into force in 1994. It is frequently labelled the ‘Constitution of the Oceans’ and is a framework agreement.
In December 2020, at the 75 session of the UN General Assembly, the Government stated that UNCLOS is “a critical part of the rules-based international system” and that the UK is “fully committed to upholding its rules and securing the implementation of its rights and obligations.”[2] The UK’s statement reaffirmed the Government’s support for the legal framework for maritime claims[3] and the rules of freedom of navigation and its application around the world (with explicit reference to the South China Sea).[4]
The Committee’s inquiry will explore the extent to which UNCLOS remains fit for purpose, the challenges facing its enforcement in 2021, and the extent to which the framework continues to reflect and uphold the UK’s interests. The inquiry will focus on issues of security, defence, climate change and international co-operation.
The call for evidence
The Committee is calling for written evidence on the questions below. The Committee will use the written evidence received to further shape its inquiry.
You do not need to answer all the questions to make a submission.
Diversity comes in many forms and hearing a range of different perspectives means that committees are better informed and can more effectively scrutinise public policy and legislation. Committees can undertake their role most effectively when they hear from a wide range of individuals, sectors or groups in society affected by a particular policy or piece of legislation. We encourage anyone with experience or expertise of an issue under investigation by a select committee to share their views with the committee, with the full knowledge that their views have value and are welcome.
General
1. What have been the main successes and accomplishments of UNCLOS over the past 40 years?
2. Which countries are the key international actors influencing the international law of the sea? What are their approaches towards UNCLOS?
3. How is UNCLOS enforced and how successful is its enforcement? How successful is dispute resolution under UNCLOS?
4. What are the other important international agreements and treaties which complement UNCLOS?
United Nations Framework Convention on Climate Change, Paris Agreement, Sustainable Development Goals, Agreement on Trade-Related Aspects of Intellectual Property Rights, International Treaty on Plant Genetic Resources for Food and Agriculture, Intergovernmental Oceanographic Commission of UNESCO’s Criteria and Guidelines on the Transfer of Marine Technology, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on Biological Diversity and its Protocols. It is highly important to have regard to the risks of fragmentation of international law and to conflicts arising at national and at a private level if issues are not viewed coherently. Especially where environmental protection is concerned, the very general provisions in Part XII of the UNCLOS should be read and interpreted in conjunction with the abovementioned treaties.
5. What is the role of the International Maritime Organisation (IMO) and other international organisations in developing UNCLOS and the law of the sea?
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)
● Autonomous maritime vehicles (both commercial and military), cybersecurity, and other new technologies
● 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
Access to marine genetic resources is not covered under UNCLOS, but negotiations are at an advanced stage towards developing an internationally legally binding instrument on the conservation and sustainable use of biodiversity of areas beyond national jurisdiction. The part of this instrument that will be relevant here is that on marine genetic resources (MGR) and questions on the sharing of benefits. Potential benefits to the use of MGR for the discovery of new products and processes such as medicines, biotechnology enzymes, nutraceuticals and cosmeceuticals and are laid out in a Royal Society Report and a High Level Panel for a Sustainable Ocean Economy Report.
Currently there are issues around whether MGR and access and benefit sharing should be approached from the perspective of freedom of the high seas (based on the water column) and common heritage of mankind (based on the sea floor) and varied views are taken by states and other stakeholders. Proposals have also been made to develop a biologically relevant, pragmatic solutions, notably through proposed in the ‘Mare Geneticum’ concept, which has been developed as the tiered approach with the importance of marine scientific research, collections of marine biodiversity, and traceability presented as separate publications.
Any new regime will need to be developed in close collaboration with the marine scientific research community so that its work is not impeded: the goal being pursued is to allow the Marine Scientific Research community greater capability to coordinate research, collaborate globally and share data in such a way as to allow better development of conservation measures and know how to carry out commercially relevant work in a sustainable way. This also involves engagement with intellectual property rights, both in relation to information and data and to patents, including regarding disclosure of origin. This will ensure the outcomes sought can actually be delivered and is an important example of the point made to question 4.
In creating new regimes, regarding MGR, digital sequence information about MGR and also such as regarding deep seabed mining, the starting point should be the conservation and sustainability of the ocean and the environment; the fact that there may be a commercial market for resources (such as deep sea mining and IT hardware) and that technology will now enable this to be extracted does not mean that it should be assumed that this should be enabled.
7. In light of these challenges, is UNCLOS still fit for purpose? Can or should UNCLOS be renegotiated to better address these challenges?
See above - marine biodiversity needs to be included and the ILBI (BBNJ Treaty) mentioned above is attempting to do that. There are certain elements such as digital sequence information (DSI, potentially including DNA, RNA and protein sequences) that are being discussed separately in multiple international forums such as UNCLOS, CBD, WHO, FAO and others. As this topic is so critical to biodiversity conservation, human health and biotechnology amongst many others it may be important to deal with this is a separate global forum as presented by a group of authors in a recent publication.
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?
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?
Taking a legally integrated and scientifically informed approach to marine scientific research/marine genetic resource bioprospecting and deep sea mining.
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?
Any maritime activities should be Net Zero compliant, and a more robust climate impact assessment and regulation of these activities (including shipping, oil and gas, fisheries) is required to comply with obligations under the Climate Change Act and the Paris Agreement. Clear guidelines on how planning, permitting, and other decisions regarding such activities should be made in light of Net Zero are needed.
The importance of the oceans as sinks of greenhouse gas emissions should be emphasised, and the research on the impacts of global warming on the oceans (such as acidification) should be promoted and integrated into policy-making.
Conservation and sustainability of the Ocean should be a priority.
[1] Evans, M., Galani, S., (eds.), Maritime Security and the Law of the Sea. Help or Hindrance?, Elgar, 2020
[2] https://www.gov.uk/government/speeches/upholding-the-un-convention-on-the-law-of-the-sea
[3] https://www.un.org/depts/los/LEGISLATIONANDTREATIES/claims.htm
[4] https://www.gov.uk/government/speeches/upholding-the-un-convention-on-the-law-of-the-sea
Note: response submitted by Professor Abbe E.L. Brown, Professor Marcel Jaspars and Dr Daria Shapovalova, all University of Aberdeen.
We are a group of scholars from law and science who engage with the Law of the Sea in our teaching and research
Received 12 November 2021