Professor Steven Haines, Professor of Public International Law, School of Law and Criminology, University of Greenwich– Written evidence (UNC0037)

UNCLOS: Fit for Purpose in the 21st Century?

Professor Steven Haines, 

Professor of Public International Law, School of Law and Criminology, University of Greenwich, with a Research interest in Ocean Governance and Maritime Law Enforcement

This submission amplifies my Oral Evidence provided on the 20 October 2021. It is inadequate against the importance of the subject and necessarily concentrates on a general account of why UNCLOS is less than fully ‘fit for purpose’ today.  What follows avoids the use of extensive referencing in the interests of brevity and to remain within the preferred page limit.   

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Essentially, UNCLOS is a forty year old framework for ocean governance that was negotiated and is now being applied in a rapidly changing maritime environment. The establishment of safe, secure and lawful seas is my principal concern and, while UNCLOS is a valuable framework in many senses, it fails in particular in relation to issues of security (especially human security) and the enforcement of law at sea. 

          There is a growing amount of criminal and illegitimate activity at sea, which has been allowed to proliferate and increase in range and intensity as a consequence of what is effectively a legal vacuum on the high seas.  This is especially a concern when it comes to the protection of people at sea.  There are extensive human rights abuses being committed but currently there is little being done to prevent them, to protect the vulnerable or to provide an effective remedy for them when human rights abuses occur. 

          The problem is especially acute because of an unfortunate fixation with the notion of ‘Free Seas’, a favourite notion of traditionally minded maritime constituencies (including shipping and major naval interests, both of which confuse the freedom of navigation with the broader concept of high seas freedom).  What is needed is a safe, secure and lawful ocean environment that allows people to go about their legitimate business while being reasonably confident about their own safety and protection from criminal elements.  We need to end strict adherence to Mare Liberum (free seas) and replace it with the notion of Mare Legitimum (safe secure and lawful seas).

          The United Kingdom, as one of the major maritime powers, should be taking a lead in advancing this objective.  Currently, it is not doing so, preferring instead to take advantage of the oceans without expending the effort necessary to render them a safe space for all.  

          I hope that what follows is of interest to the Committee.  Ocean governance and the need for Mare Legitimum is a massive subject that requires more than a mere six pages to describe.  I have been necessarily selective in drafting what follows and have left much unstated; most frustrating!  I will be happy to expand on any points if the Committee would like me to do so.

Since the middle of the 20th century, the maritime environment[1] has been undergoing substantial and rapid change.  We have been witnessing the most intense period of change ever experienced in relation to the seas and oceans.  We are currently at an advanced stage of transition to a profoundly different era of ocean governance from that which extended from the early-17th century to the middle of the 20th.  

          It is just short of half a century since the beginning of the Third United Nations’ (UN) Conference on the Law of the Sea (UNCLOS III) which produced UNCLOS. The Convention was negotiated in the midst of serious and dynamic upheaval in the environment it was meant to regulate. In the light of that, it would be remarkable, given the timing and context of the Convention’s negotiation and agreement, if UNCLOS were to be judged fully ‘fit for purpose’ for the 21st century.  Indeed, while there is a great deal to be said in favour of the Convention as it stands, in certain aspects its provisions are the cause of serious shortcomings in both the governance of the oceans and the establishment of the rule of law at sea.  Any suggestion that UNCLOS is fully ‘fit for purpose’ should be regarded with caution by the Committee.  What follows aims to demonstrate why this is so. 

The Law of the Sea in Context

In assessing the effectiveness of UNCLOS as the legal framework for ocean governance, it is vitally important that we take into account both the various dimensions of the maritime environment and the historical context in which the Convention was negotiated and is being applied.  The question posed by the Committee simply cannot be addressed by reference to the law alone; effective analysis is necessarily inter-disciplinary.  An appropriate methodology breaks the maritime environment down into eight different but mutually influencing dimensions: Political; Institutional; Economic; Social; Technological and Scientific; Security; Legal and Normative; and Physical. None is pre-eminent.

          In the past, the governance of the seas and oceans was largely predicated on the well-known notion of Mare Liberum (or Free Seas) articulated in the early-17th century by the Dutch lawyer Hugo de Groot (or Grotius).  Under the doctrine of Free Seas, the oceans were largely unregulated because they were sparsely populated and were not susceptible to acquisition or ownership by states.  They were naturally and deliberately maintained as an anarchic space (‘anarchic’ meaning the absence of governance rather than the existence of chaos and disorder).  Until recently the application of Free Seas was arguably appropriate. Since the 1950s, however, there has been so much change within the maritime environment that it is now inappropriate to privilege the notion of Free Seas. Indeed, numerous developments in the past seven decades have rendered an approach influenced by Mare Liberum seriously problematic. 

Dimensions of Change in the Ocean Environment

Using the dimensional headings, the following provides some idea of significant areas of change within the maritime environment since the 1950s (the listings under each heading are merely examples and by no means exhaustive).  

Political:

• Disintegration of the maritime empires;
• Four-fold increase in the number of states; now 193 UN member states, 149 of which are coastal states with a direct interest in the sea and its governance;
• Apparent decline in general naval warfare, the main cause of which had been maritime imperial rivalry.
• Increased political awareness of the need for ocean governance

Institutional:

• Creation of the UN and its various agencies, including the International Maritime Organisation focused on the regulation of the shipping industry.
• UNCLOS gave birth to the Law of the Sea Tribunal and the International Sea-Bed Authority
• A further example of institutional proliferation is the total of seventeen Regional Fisheries Management Organisations
• Apart from the above, there is a wide range of institutions - far too many to list.

Economic:

• Maritime trade increased four-fold since the early-1970s;
• Shipping industry transformed by increase in vessel size, containerisation for general cargo and the growth of open registries
• Seas and oceans once mainly a medium for trade, now also a major source of resources;
• Global fish catch has increased from around 17 million tons in 1950 to 130 million tons today (around 20% of which consists of fish that are either caught illegally, are unreported or are taken from unregulated stocks– so-called IUU fishing). 
• Fish stocks under existential threat globally caused by global population growth and increased demand for fish, coupled with enhanced fishing related technologies
• Development of offshore gas and mineral industries.   

Social:

• Around 30 million men, women and children physically at sea at any time today;
• Most people at sea are fishers (around 27 million), 1.6 million employed in the global shipping industry. 
• Serious concerns about human rights abuses at sea;
• Slavery at sea, especially in the fishing industry;
• Substantial numbers of people at sea in cruise ships with little or no facility for law enforcement and security etc
• The abuses of human rights at sea is now a major cause for concern due to people trafficking and smuggling, slavery at sea, poor working conditions and inadequate welfare provision for seafarers;
• Nothing in UNCLOS about human rights – a major gap in the ‘constitution of the oceans’.  Human Rights apply at sea to the same extent that they do on land.

Technological and Scientific:

• Advances in technology have opened up the seas and oceans to much increased exploration and resource exploitation in relation to both living and non-living resources.
• Global fish catch significantly increased;
• Continental shelf exploitation a late 20th century phenomenon.
• Undersea telecommunications cables spanning the earth enabling global internet connectivity;
• Remote and autonomous maritime systems increasingly being deployed;
• Ever larger merchant vessels of all types with the prospect of unmanned vessels in coming decades.

Security: 

• Maritime security is about much more than security at the state level and the protection of states’ interests at sea (including the protection of trade). 
• Four-fold increase in the number of navies since 1950;
• For ‘navies’ read ‘navies and coastguards’;
• Most navies employed on constabulary/law enforcement operations not war-fighting;
• Major requirement for maritime law enforcement in states’ adjacent waters;
• Security issues include the suppression of illegal activity, ranging from piracy, smuggling and trafficking (of people, arms, narcotics, etc) to IUU fishing; 

Legal and Normative:

• Increasing recognition that the seas represent a complex and vital environment that requires regulation, leading to a substantial increase in the number of treaties/conventions and a resultant increase also in custom and practice. 
• The Grotian ‘Free Seas’ effectively no longer exist given the extent and scope of maritime regulation. 
• Negotiation of a series of UN Conventions on the Law of the Sea (four conventions from 1958 and 1982 UNCLOS itself which replaced them);
• Massive extension and enhancement of coastal state jurisdiction;
• Conventional law has proliferated since the 1950s, with most of that occurring since the final agreement of UNCLOS in 1982. 
• The IMO in relation to shipping has been responsible for over thirty conventions. 
• Numerous agreements on maritime boundaries, fishing, maritime labour rights, global crime, the physical environment and biodiversity have been features of the ‘new’ post-Grotian Law of the Sea. 

Physical: 

• The effects of climate change on sea levels;
• The effects of pollution (most infamously of plastics) on the oceans and the living organisms that represent a substantial proportion of the Earth’s bio-mass.
• Long-term effects of resource exploitation;
• The physical condition of the oceans has become a cause of serious concern ;
• Some successes – eg the MARPOL Convention reducing vessel-source pollution. Nevertheless, the physical state of the oceans is a matter for considerable concern and it has become progressively worse over the past seven decades.

This summary cannot do full justice to the changes that have occurred in the maritime environment since the 1950s.  While many developing trends were already obvious by the 1970s, the UNCLOS negotiations could not adequately predict or take account of developments since.  While UNCLOS might have been ‘fit for purpose’ in 1982, serious shortcomings have since been revealed, especially in relation to maritime security, the effective enforcement of maritime regulations, the protection of people and their human rights, and the manifest failure to establish the Rule of Law at sea.

          These shortcomings are only acknowledged with reluctance at the political level.  Governments globally, especially those of the most influential maritime powers, tend to claim that UNCLOS is working effectively to provide a framework and that further legal developments can be adequately arrived at within the existing Law of the Sea. The two HM Government officials who gave evidence to the Committee on 10 November, provided a typical official response in this respect.  They each implied that UNCLOS is a viable framework with scope to develop new law within it. Commander Tuckett described the ways in which the UK is playing a leading role in the development of legal solutions to issues generated by emerging technologies, including autonomous systems.  She demonstrated very well that some detailed technical issues can be addressed effectively within the UNCLOS framework. This is not contested. The testimony of the FCDO’s Mr Murdoch was problematic in parts, however.  He avoided detailed comment on the issue of human rights at sea, which are virtually ignored by UNCLOS.  He also for example mentioned, as a positive point, the UK’s involvement in negotiations for a new treaty dealing with biodiversity in areas beyond national jurisdiction.  While such an instrument may effectively address scientific issues to do with biodiversity, it is a very good example of an instrument that appears to be doing little or nothing to address the difficulties of enforcing any provisions likely to be included within its text. 

          Far too much law within the Law of the Sea framework is almost wholly unenforceable and, potentially, completely ineffective.  Diplomats and legal advisers negotiate and produce impressive international legal instruments but, without the provision of mechanisms and processes for enforcement, much of the resultant law will be rendered moribund.

The Heart of the Problem: Ineffective Enforcement

There has been a substantial increase in the amount of law and regulations negotiated and agreed dealing with a host of maritime issues under all of the eight dimensional headings. The issues and changes highlighted have all prompted calls for international legal development, many of which have admittedly been effective.  As a result, there is no general shortage of law and, in most cases, new legal instruments can be accommodated with little difficulty within the UNCLOS framework.   Nevertheless, there is a serious lack of compliance with international law at sea and there are significant shortcomings when it comes to enforcement.  Within zones of coastal state jurisdiction, the coastal state should enforce regulations, but many do not have the wherewithal to do this effectively.  In particular in the developing world, there is a need for improved maritime law enforcement through capacity building to ensure adequate governance within coastal zones.  Maritime constabulary capacity building should be a focus for aid programmes to ensure that vast areas of ocean are effectively policed and rendered safe for legitimate activity to proceed.

          The most serious problem today, however, is in relation to the high seas and other areas beyond territorial limits.  There is no institution in a position to exercise routine and continuous monitoring and enforcement of the high seas.  The traditional high seas freedom still applies, meaning that no state can ordinarily exercise jurisdiction at sea except in relation to its own vessels (and in a select list of exceptional instances - eg to suppress piracy and the slave trade).  The traditional notion of Exclusive Flag State Jurisdiction means that only the registered flag state can grant permission for high seas interdiction of its vessels for the purpose of law enforcement and security.  As Commander Tuckett admitted during her evidence to the Committee, Flag State Consent for maritime law enforcement purposes is fine in theory but is very rarely granted/obtained.  If flag states were able to exercise their exclusive jurisdiction in an active sense, this might not be such a problem, but not only are they unwilling, the vast majority are physically incapable of doing so.  Even the major maritime powers would experience difficulty policing their fleets of registered vessels globally; open registry states (whose flag are worn by the majority of ships today) are wholly incapable of doing so.  In theory, UNCLOS demands a ‘Genuine Link’ between flags of registry and the vessels on their registers, but this is a sham that is simply ignored for the financial convenience of shipping companies and ship registries.  There is a virtual jurisdictional vacuum at sea predicated on the outdated notion of high seas freedoms and jurisdictional exclusivity.  There is currently no concerted international effort to address this. Not even the major maritime powers – the UK included – are focused on this problem.

A United Kingdom Responsibility

This current situation presents a very serious challenge for the UK and other major maritime powers keen to see a stable ocean environment. There is no prospect of substantial changes to UNCLOS being negotiated and one must look instead to ways in which the Law of the Sea and the arrangements for ocean governance might be developed within the existing UNCLOS framework.  The UK, as one of the five most influential maritime powers, has a responsibility to play a leading role in shaping any necessary developments.  This will require as great a focus on ocean policy as is currently being devoted to the challenges of stemming climate change.  Indeed, the two areas of concern – the global climate and the state of the seas and oceans – are inextricably linked. 

          The effective governance of the oceans is a vital component of the quest for sustainability globally.  and it requires a proactive approach that is currently sadly lacking.  But there is more to the challenges of ocean governance than the physical condition of the ‘global ocean’.  There are additional issues that ultimately threaten the safety and security of the millions of people who are present at sea and involved in legitimate activities; their needs require acknowledgement and a concerted international effort to provide them with a safe and secure space in which criminal activity is suppressed and human rights respected

          What is required today and into the future is an acknowledgement that the ‘freedom of the seas’ has had its day.  We should no longer tolerate an anarchic situation on the seas and oceans facilitated by Exclusive Flag State Jurisdiction and supported by influential open registries.  The seas are vitally important areas that need to be both regulated and policed to ensure a stable and secure environment for sustainability and for legitimate activity to proceed in safety.  We need to replace Mare Liberum with Mare Legitimum – safe, secure and lawful seas.  Far from threatening the freedom to navigate, this would ensure that those legitimately involved in lawful occupations at sea could live and work in a secure environment subject to the Rule of Law – an effective element of the Rules-Based International Order.

          The UK, with its reinvigorated approach to maritime issues on a global scale, could positively champion maritime security, high seas enforcement of all relevant laws, the reform of processes to enable effective exercise of jurisdiction over vessels on the high seas, and the recognition of the importance of human rights at sea.  There is a dire need for leadership internationally and the UK is well placed to exercise it. 

Received 12 November 2021

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