The Pew Charitable Trust – Written evidence (UNC0040)
The Pew Charitable Trusts input into: UK Parliamentary International Relations and Defence Committee inquiry on the question of: UNCLOS: fit for purpose in the 21st century?
The submission focuses on two main issues 1) Seabed Mining and 2) the negotiation of a High Seas Treaty
General
1. What have been the main successes and accomplishments of UNCLOS over the past 40 years?
UNCLOS remains a landmark of international law in agreeing to equitably conserve and manage the resources of areas beyond national jurisdiction (the Area) while protecting its marine environment, all on behalf of humanity. That this regime has endured, and that States continue to observe those principles enshrined in the agreement making the Area as a common heritage of humanity, is an achievement that should be celebrated.
3. How is UNCLOS enforced and how successful is its enforcement? How successful is dispute resolution under UNCLOS?
That UNCLOS provides a mechanism for dispute resolution at all is an achievement. However, the expense, uncertainty, and political fallout of engaging its dispute resolution mechanisms means that it is rarely invoked and is unavailable for disputes of an administrative nature. It is also unavailable for non-State actors, like environmental organizations or indigenous groups. This is problematic as it means marginalized voices within States struggle to have their interests recognized. Finding avenues to raise these voices in the deliberations of organizations that implement UNCLOS is a challenge for the future of this regime.
4. What are the other important international agreements and treaties which complement UNCLOS?
A patchwork of international bodies and treaties manage ocean resources and human activity in areas beyond any state’s national jurisdiction. Specific international agreements, treaties, and bodies that complement UNCLOS include, inter alia, regional bodies such as Regional Fisheries Management Organizations (RFMOs) and Regional Seas Organizations (RSOs), as well as global bodies and agreements such as the International Maritime Organization, the International Seabed Authority (ISA), the International Maritime Organization (IMO, and its associated Protocols) the Convention on Biological Diversity (CBD), the Convention on International Trade in Endangered Species of Flora and Fauna (CITES), the Convention on Migratory Species (CMS), and International Whaling Commission. These governance bodies vary greatly in terms of their mandate, which determines their geographic scope, their objective, the legally binding nature of decisions they adopt, and whether they regulate one or several activities. Their jurisdictions often overlap, but virtually no mechanisms exist to coordinate across geographic areas and sectors. This has resulted in a piecemeal approach to conservation and this governance gap has led to the degradation of the environment and its resources and makes deploying management and conservation tools such as environmental impact assessments and marine protected areas (MPAs), including marine reserves, challenging both legally and logistically.
More details about the existing organizations and the governance gaps where it comes to protecting marine biodiversity of areas beyond national jurisdiction are available here:
UNCLOS has two implementing agreements, the 1994 Agreement relating to the implementation of Part XI[1] and the 1995 Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (‘UN Fish Stocks Agreement’ or UNFSA),[2] and the United Nations are now in the process of negotiating a third implementing agreement under UNCLOS focused on “the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”, colloquially known as BBNJ or the High Seas Treaty. The BBNJ Agreement is of pivotal importance to provide a mechanism for establishing area-based management tools, including marine protected areas, and associated management measures in areas beyond national jurisdiction, ensuring sustainable use through robust environmental impact assessment processes and standards, and enhancing coordination with other international bodies regarding the conservation and sustainable use of marine biodiversity. https://www.un.org/bbnj/
5. What is the role of the International Maritime Organization (IMO) and other international organizations in developing UNCLOS and the law of the sea?
The International Seabed Authority (ISA) is a key player in operationalizing Part XI of UNCLOS, which governs mining in the seabed beyond areas of national jurisdiction. The ISA is tasked with regulating the exploration and exploitation of mineral resources in the deep seabed, and to that end, is developing rules and regulations to effectively govern such activities. Negotiations on a Mining Code for exploitation of resources are currently on-going and will eventually incorporate regulatory mechanisms to protect the marine environment from mining activities, and for the equitable distribution of financial and other benefits arising from mineral exploitation.
The ISA therefore finds itself in a unique position. It is both: (i) a multilateral body responsible for convening its member States to make decisions on the Area; (ii) a regulator, charged with oversight of an untested industry in an unexplored part of the planet. How it straddles these two roles, and whether it has the capacity to adequately fulfill each, is among its key challenges.
6. What are the main challenges facing the effective implementation of UNCLOS in 2021? We would particularly welcome responses on:
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.
Despite intensifying efforts, we have barely begun to understand the deep ocean. It teems with life, but the variety and nature of its inhabitants, its connections to other parts of the ocean and Earth, and its benefits to humanity are just some of the mysteries still surrounding this unseen, but critically important part of our world.
Partly because seabed mining technology remains largely untested, and partly because it will be deployed in this pristine, fragile, and poorly understood environment, the potential impacts of mining in these benthic reaches are equally unknown. Seabed mining must therefore be approached with the upmost caution. It should NOT be permitted UNLESS the effective protection of the marine environment can be ensured pursuant to Article 145 of UNCLOS. Yet the regulatory framework that would govern mining remains incomplete in several critical respects. These gaps must be addressed for the effective implementation of UNCLOS -
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
7. In light of these challenges, is UNCLOS still fit for purpose? Can or should UNCLOS be renegotiated to better address these challenges?
The ISA faces several challenges in fully realizing its mandates, some of which derive from specific provisions of UNCLOS.
1. Capacity constraints:
If the deep-sea mining industry matures, the ISA must evolve from a multilateral convenor to a regulator of industry, a transition that may necessitate significant reform.
One area for focus may be the ISA’s Legal and Technical Commission (LTC). While the States serving on the ISA’s 36-member Council function as the organization’s primary decision-making arm, the LTC may have its most important role. Members of the LTC are elected by Member States but serve in their individual capacity as experts in their field. The Commission’s duties include, but are not limited to, reviewing applications by deep sea mining proponents, developing environmental management plans, assessing environmental impact assessments, and developing rules and regulations to govern activities in the Area. As such, it makes key recommendations to the Council across virtually all the issues that come before it. While the LTC’s role is nominally advisory, UNCLOS stipulates that the Council must approve the LTC’s recommendation on a mining plan unless a two-thirds majority votes otherwise. This deference, coupled with its broad spectrum of responsibilities, effectively renders the LTC a decision-making body.
However, Commissioners work part-time in the margins of their respective careers and are not paid to perform these duties. In a typical year, they will meet twice annually to deliberate on substantial matters. As the responsibilities of the ISA - to manage contracts, assess EIAs, evaluate plans of work, develop regulations and rules, and monitor compliance – increases, so does the workload of the LTC.
UNCLOS does not provide specifically for a professional support staff to carry out the ISA’s regulatory functions, but it is increasingly evident that such support is necessary. Addressing this challenge will not require an amendment or renegotiation of UNCLOS, but a concerted effort to ensure that the ISA has dedicated support across all the disciplines implicated by the potential for seabed mining would be welcome.
2. Increased political pressure to permit seabed mining: In June 2021, the Government of Nauru issued a letter to the ISA informing of its decision to apply for an exploitation contract in the Area within two years. This notification triggered a provision under the 1994 Implementing Agreement of UNCLOS directing the Council to adopt regulations governing exploitation within two years of receiving such a notice from an ISA member State. If the Council is unable to adopt Regulations in that timeframe, then it must consider the application based on any provisional rules in place and the provisions and norms of UNCLOS.
This notification has come despite the institutional barriers preventing the ISA from acting as an effective regulator (see above), the scientific gaps that persist in our understanding of the deep ocean, and the work that remains to achieve consensus on mining regulations. Revision or amendment of UNCLOS to eliminate this “two-year trigger” may not be possible, so the UK must instead work together with other member States in the context of the ISA to push back against and the rush to commence mining ensure that the intent of UNCLOS is upheld. This can be achieved by 1) resisting the adoption of inadequate regulations; and 2) preventing the approval of any contracts for mining without adequate regulations in place based on provisions and norms of UNCLOS.
The High Seas Treaty
UNCLOS was negotiated in the 1950-80s; it has no references to climate change in the articles of the treaty, nor to the precautionary principle and ecosystem approach. Furthermore, though we are only now just beginning to understand deep ocean ecosystems, the general understanding of the wider ocean ecosystem and its importance to humankind was even less well understood when UNCLOS was negotiated.
The Fish Stocks Agreement calls for the application of the precautionary approach, albeit about fish stocks as opposed to the wider ecosystem and provides specific guidance on how precaution should be applied. However, effective implementation of the precautionary approach within the network of RFMOs has been limited. Notable successes include the banning of bottom trawling on vulnerable marine ecosystems, such as sea mounts, although this has only been carried out in a few areas by a handful of RFMOs and required several UN resolutions to bring it into effect. Much work remains to be done: http://www.savethehighseas.org/wp-content/uploads/2016/07/DSCC-Review-2016_Launch-29-July.pdf
RFMOs also remain primarily focused on management of fish stocks, some of these issues are also linked to human rights and safety at sea, so the implementation and reform of RFMO operations remains an important and relevant challenge to address:
https://www.pewtrusts.org/en/projects/improving-management-of-international-fisheries
While the current UNCLOS provisions leave a host of gaps and challenges when it comes to implementation in the 21st century, the degree to which it foundationally underpins international ocean governance cannot be understated. It took a quarter of a century to negotiate UNCLOS and an additional 12 years before it entered into force. Re-opening UNCLOS negotiations would likely create more challenges than it would solve (particularly about maritime boundaries). Negotiating new implementing agreements to UNCLOS would be a more effective solution to modernizing UNCLOS and ensuring that it is up to the task of addressing the 21st Century challenges of the climate and biodiversity crises. The new High Seas treaty currently under negotiation is one such opportunity to modernize UNCLOS-but only if nations negotiate a sufficiently ambitious treaty text that sufficiently builds upon the UNCLOS framework to fully operationalize key components towards the objective of a fully sustainable ocean in the final round of negotiations, slated to take place at the United Nations in New York in March 2022. https://www.un.org/bbnj/
Governments, including the UK, seem hesitant to vest the new Treaty with the full set of policy tools required for the challenge. A future Treaty needs to have the ability for its Parties to directly adopt Marine Protected Areas with legally binding associated management measures, rather than relying solely on the existing patchwork of bodies to conserve high seas biodiversity. Less than 1% of the High Seas is currently being properly protected by current governance bodies--continuing to rely on them for biodiversity conservation would do little to improve the status quo. Furthermore, without this ability the Treaty risks undermining the UK’s aim of protecting 30% of the global ocean by 2030, as the Treaty would only be able to designate “paper parks”, this risk turning the implementation of this target into an accounting exercise with limited impact on the water. https://www.pewtrusts.org/en/research-and-analysis/articles/2021/09/24/key-international-body-urges-un-to-finalize-treaty-to-protect-high-seas-by-early-2022
Worst yet, some Governments have been pushing to exclude fisheries from the scope of the Treaty in its entirety, this paper sets out further why that would be a disaster: https://www.nature.com/articles/s41559-019-0981-4/
The Treaty also represents an opportunity to harmonize and modernize practice for undertaking Environmental Impact Assessments (EIA) with impacts on biodiversity in areas beyond national jurisdiction. A more modern approach to EIA has been implemented in the Madrid Protocol, yet States, including the UK, appear hesitant to take on board these practices in the High Seas Treaty, which would be a missed opportunity: http://www.highseasalliance.org/wp-content/uploads/2020/09/FInal-Brief-Consistency-of-Madrid-Protocol-Thresholds-with-UNCLOS-9.9.20.pdf.
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?
The UK sponsors UK Seabed Resources (UKSR) in its exploration of polymetallic nodules on the Pacific Ocean seabed. As a sponsoring State, the UK has a responsibility and opportunity to lead in the space. In that regard, it is encouraging to hear that the UK has committed to:
- implementing a precautionary principle to deep sea mining; and
- not sponsoring or supporting the issuing of any exploitation licenses for mining projects until there is sufficient scientific evidence about the potential impact on deep sea ecosystems and strong, enforceable environmental standards are in place.
The UK government must actively participate in the negotiations at the ISA and continue to call for a precautionary approach to deep sea mining and championing reform of the ISA at an institutional level.
Received 12 November 2021
[1] Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, Opened for Signature 28 July 1994, 1836 UNTS 3 (Entered into Force 28 July 1996).
[2] United Nations 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, opened for signature 8 September 1995, ATS 8 (entered into force 11 December 2001).