Ocean Law Specialist Group, World Commission for Environmental Law (WCEL), International Union for Conservation of Nature (IUCN) – Written evidence (UNC0042)

UK Parliament International Relations and Defence Committee

Call for Evidence, UNCLOS: fit for purpose in the 21st century?

Submission of the Ocean Law Specialist Group, World Commission for Environmental Law (WCEL), International Union for Conservation of Nature (IUCN)

12 November 2021

Summary

We recommend the following steps to implement the 1982 UN Convention on the Law of the Sea (UNCLOS) consistent with the needs and knowledge of today. We do not advocate opening UNCLOS to amendment.

Concrete steps are needed to ensure that climate and biodiversity considerations are fully reflected and incorporated into the international law of the sea in its interpretation of the relevant UNCLOS provisions. A priority is to galvanise support for an ambitious and expeditiously adopted BBNJ Agreement reflecting at minimum the elements in the IUCN WCC Resolution 126 (2021); a robust Global Biodiversity Framework; and requiring UNFCCC and Paris Agreement parties to integrate and strengthen ocean-based action in their existing mandates and workplans.

The existing legal framework under UNCLOS is presently poorly equipped to deal with critical problems involving sea level rise, equity, fairness and justice, particularly for small island states. Ways to address these issues will be a critical concern in the coming years, and include the question of whether some form of modification of UNCLOS is needed or even possible, or whether interpretation and evolving State practice may be sufficient.

It is time for a thorough review of how State Parties have collectively given effect to Part XII of UNCLOS (Protection and Preservation of the Marine Environment), including but not limited to provisions that require State Parties to cooperate and come together to formulate rules, standards and best practices to ensure the protection of the marine environment and to develop and agree on scientific criteria.

Current practices with respect to the flagging of vessels and sponsoring mining activities in the Area should be reconsidered, to ensure that definitions and regulatory requirements pertaining to “genuine link and effective control” are clearly set out and agreed upon to eliminate flag States of non-compliance and sponsoring States of convenience, which continue to pose a threat to marine environmental protection and ocean equity.

A stronger application of the precautionary principle and approach is needed for human activities at sea, with a view of phasing out those that are known or expected to cause significant harm to the marine environment, such as bottom trawling fisheries, oil and gas activities in the Arctic Ocean and other sensitive sea areas, deep seabed mining, and large-scale marine geoengineering.

The numerous environmental, scientific, regulatory and institutional challenges surrounding the novel and potentially destructive deep seabed mining in the Area must be acknowledged. A more precautionary stance at the International Seabed Authority is needed, in line with the recent IUCN WCC Resolution 069 (2021).

Appropriate mechanisms are needed to ensure more transparency and accountability of international organizations (including autonomous international organizations such as the International Seabed Authority). Appropriate administrative oversight and procedures for complaints should be designed in this respect. Consistent with this good government approach, judicial processes and decisions of international courts and tribunals on matters related to the law of the sea and environmental protection must be duly respected.

Introduction

The Ocean Law Specialist Group, World Commission for Environmental Law of the International Union for Conservation of Nature submits this response to the UK Parliament International Relations and Defence Committee Call for Evidence, UNCLOS: fit for purpose in the 21st century? We comment, in responding to question 6, on the challenges of addressing climate change, the loss of biodiversity, and access to and benefit sharing of mineral resources in areas beyond national jurisdiction. In our view, explained in response to question 7, this is not the time to renegotiate UNCLOS; it is instead the moment for States Parties (working alongside all other actors and stakeholders) to improve the implementation of UNCLOS principles, obligations, responsibilities, and commitments through revitalized and new international mechanisms, and to evolve them as necessary to adapt to changing conditions. We offer suggestions, regarding question 9, for priorities.

6. Challenges

It is imperative to recall that UNCLOS was negotiated in the 1970s and concluded in 1982 (even though it only entered into force in 1994). Consequently, and although UNCLOS provisions are frequently interpreted in the light of subsequent developments, it is fair to surmise that the implications of climate change are not adequately reflected in or addressed through UNCLOS. Nor was the diversity of ocean life and its complex interlinkages with physical ocean systems recognized at that time. We would like to highlight three particular examples: first, the impacts of rising sea levels and its implications for maritime boundaries, second, the important functions of the ocean in climate regulation and thus the need to safeguard marine biodiversity to enhance ecosystem resilience, and third, the impacts of deep seabed mining in light of present understandings of the deep ocean’s rich but fragile biodiversity and role in  the ocean’s biological pump for carbon sequestration, and amidst  rising equity and governance concerns.

Climate change

We focus first and foremost on the challenge of climate change as changes related to rising CO2 and other greenhouse gases will exacerbate other existing stressors on the current international ocean governance framework under UNCLOS. These include erosion of shorelines, loss of territory and destruction of infrastructure and livelihoods, resulting in huge economic costs for those least able to bear them. Eroding environmental quality and declining marine living resources leads to more pressure on ocean life and biodiversity, threatening to undermine the ecosystem services and cultural values we all depend upon. These pressures will further erode maritime security while providing a fertile ground for human rights abuses and transnational crime to prosper, enabled by an antiquated legal system that relies primarily on often distant flag-states for enforcement of laws and norms now vital for planetary health and security.

As we will return to discuss below, we do not advocate opening up UNCLOS for renegotiation, rather we would argue hard against it. But the observable and predicted effects of climate change make it clear that the UNCLOS framework will need to evolve if it is to remain fit for maintaining the rule of law in the years to come.

It is clear that direct action to address the sources of climate change needs to be addressed under the UN Framework Convention on Climate Change. However, in UNCLOS, States have committed to principles and obligations that can provide a basis for responding to the impacts of climate change on the marine environment. Nevertheless further tools are necessary to advance the adaptive capacity of marine ecosystems as well as management and governance institutions globally. For this purpose, UNCLOS will need to evolve in a manner that lives up to global aspirations reflected in its Preamble, for a legal order for the seas and oceans that will promote, inter alia, “the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study protection and preservation of the marine environment.” 

References:

Laffoley et al. 2021 The forgotten ocean: Why COP26 must call for vastly greater ambition and urgency to address ocean change  Aquatic Conserv: Mar Freshw Ecosyst. 2021;1–12. DOI: 10.1002/aqc.3751 https://onlinelibrary.wiley.com/doi/10.1002/aqc.3751

Sea level rise and its implications for baselines

Sea level rise and the impacts of climate change were not envisaged by the negotiators of UNCLOS – but these issues have great significance for low lying and small island States, some of which face existential threats.

The wording of UNCLOS Article 5 defining “Baselines” is ambiguous and not free of controversy.  It provides that:

Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.

The challenge with this wording is that it could be read in two different ways:

a) It could be understood to mean that the normal baseline is the “actual” low water line wherever that is.

b) It could be read to mean that it is the “charted” baseline shown on officially recognized charts—whether or not they are accurate.

The significance of this difference is particularly important in the context of sea level rise. If the first interpretation is correct, it means that the legal baseline moves with the actual coast (that is, it is ambulatory), which would likely result in a similarly shrinking Exclusive Economic Zone.

However, if the legal baseline is the one shown on official charts, and those charts are not changed, then the legal baseline does not change, nor do any of the maritime zones measured from it. This is highly significant if the “actual” coastline moves as a result of sea level rise.

Citing the foundational principles of UNCLOS of legal stability and security as well as equity, fairness and justice, the South Pacific Island States leaders have indicated their future intended interpretation in the historic “Declaration on Preserving Maritime Zones in the Face of Climate Change related Sea-Level Rise”. In it, 18 States declare “that we do not intend to review and update the baselines and outer limits of our maritime zones as a consequence of climate change-related sea-level rise”.

An open-ended study group on “Sea-Level  Rise and International Law” was established in 2018 by the International Law Commission to grapple with the issue, building on the prior work of the International Law Association. Some States are now seeking advisory opinions on a range of issues for island states derived from climate change impacts.

The existing legal framework under UNCLOS is presently poorly equipped to deal with these critical problems involving sea level rise, equity, fairness and justice. Ways to address these issues will be a critical concern in the coming years, and include the question of whether some form of modification of UNCLOS is needed or even possible, or whether evolving State practice, as evidenced by the PIF Declaration, may be sufficient.

References

Text drawn from: David Freestone and Duygu Çiçek, The Legal Dimensions of Sea Level Rise: Pacific Perspectives. The World Bank and GFDRR, 2021

“Declaration on Preserving Maritime Zones in the Face of Climate Change related Sea-Level Rise Communiqué The eighteen signatory States are: Australia, the Cook Islands, the Federated States of Micronesia, Fiji, French Polynesia, Kiribati, Nauru, New Caledonia, New Zealand, Niue, Palau, Papua New Guinea, the Republic of the Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. The Declaration is .available at: –.https://www.forumsec.org/2021/08/11/declaration-on-preserving-maritime-zones-in-the-face-of-climate-change-related-sea-level-rise/

David Freestone and Clive Schofield,  “Pacific Islands Countries Declare Permanent Baselines, Limits and Maritime Boundaries” (2021) 36(4) International Journal of Marine and Coastal Law 685-696.

David D. Caron, “When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level,” Ecology Law Quarterly Vol. 17, No. 4 (1990), pp. 621-653 (33 pages) https://www.jstor.org/stable/24113055

Donald R. Rothwell, “Line in the sand: How sea-level rise is challenging international law” https://www.lowyinstitute.org/the-interpreter/line-sand-how-sea-level-rise-challenging-international-law

Loss of biodiversity

The second challenge is the accelerating levels of biodiversity loss in the marine environment. Part XII of UNCLOS provides that ‘States have the obligation to protect and preserve the marine environment,’ but this general principle does not operationalize modern imperatives to halt the loss of biodiversity through ecosystem approaches and the precautionary approach. It lacks mechanisms to protect fragile, biodiverse and ecologically important areas of the ocean with systems of marine protected areas and other area-based management tools, to ensure that all activities are 100 per cent sustainable, and to enable the types of collaboration based on shared goals required to address biodiversity loss across a range of temporal and spatial scales. 

To stem the loss of marine biodiversity globally, strong support for an ambitious post 2020 Global Biodiversity Framework under the Convention on Biological Diversity and for an equally ambitious International Legally Binding Instrument under UNCLOS for Marine Biodiversity in Areas Beyond National Jurisdiction—the so-called BBNJ Agreement—will be essential.

While Part XII of UNCLOS deals with the protection of the marine environment and Parts V and VII with the conservation of living marine resources, States currently have differing views in terms of what is required to achieve the necessary levels of protection. Since UNCLOS recognizes that the ocean and its problems are interconnected, it is necessary to harmonize how States behave and understand concepts such as precaution, ecosystem-based management, conservation, and the duty to cooperate. The BBNJ Agreement and the Post 2020 Global Biodiversity Framework offer the potential to set a new course for avoiding biodiversity loss across generations while building on the strong and important pillars of UNCLOS.

This harmonization, or at minimum coherency, should reflect more modern commitments to protect the “health, productivity and resilience of the ocean” (Rio+20) and to, “sustainably manage, and protect marine and coastal ecosystems to avoid significant adverse impacts, including by strengthening their resilience and take action for their restoration, to achieve healthy and productive oceans” as agreed in SDG 14.2, among other important goals and targets. To achieve these goals, more than just percentages of protected areas need to be secured, though experts are saying at least 30 per cent of the ocean should be effectively protected and all activities sustainably managed. Core elements for an ambitious BBNJ Agreement are highlighted in the IUCN WCC Resolution 126 (2021) - Acting for the conservation and sustainable use of marine biological diversity in the ocean beyond national jurisdiction adopted by IUCN members in September 2021.

Support for international science cooperation, capacity development and technology transfer is also essential to implementation of the biodiversity agenda. Article 197 of UNCLOS is relevant here, as it envisages the further development of rules, standards and recommended practices and procedures for the protection of the marine environment, while Article 201 envisages the establishment of scientific criteria for the formulation and elaboration of these rules, standards and recommended practices and procedures.  Together, these two articles should lead to the establishment of science-based environmental quality goals, thresholds and indicators, so that activities such as proposed deep seabed mining do not cause significant adverse impacts, and that pernicious sources of marine pollution and habitat degradation are halted.  Moreover, such science based standards, accompanied by global cooperation in monitoring and environmental assessment, can help to ensure coherence within government ministries at the national level and within and between international organizations, so that one organization does not adopt standards that undermine the effectiveness of global efforts to protect the marine environment and conserve marine biodiversity (further discussed in the section on deep seabed mining and the ISA below).

References

IUCN WCC Resolution 126, 2021 - Acting for the conservation and sustainable use of marine biological diversity in the ocean beyond national jurisdiction; available at: https://www.iucncongress2020.org/motion/126

IUCN Comments, 2020. International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, available at: https://www.iucn.org/sites/dev/files/content/documents/iucn_comments_on_revised_bbnj_draft_text_february_2020.pdf

Gjerde, K.M., and Vierros, M. 2021. Achieving SDG 14, Time for a Global Ocean Approach, chapter in Fulfilling the Sustainable Development Goals: On a Quest for a Sustainable World https://www.routledge.com/Fulfilling-the-Sustainable-Development-Goals-On-a-Quest-for-a-Sustainable/Kakar-Popovski-Robinson/p/book/9780367700256

Gjerde, KM and Yadav, SS, 2021. Polycentricity and Regional Ocean Governance: Implications for the emerging UN Agreement on marine biodiversity beyond national jurisdiction, Frontiers in Marine Science, Special Issue on Regional Governance of Ocean Ecosystems https://www.frontiersin.org/articles/10.3389/fmars.2021.704748/full

Levin, L.A., Mengerink, K., Gjerde, K.M., Rowden, A.A., Van Dover, C.L., Clark, M.R., Ramirez-Llodra, E., Currie, B., Smith, C.R., Sato, K.N., Gallo, N., Sweetman, A.K., Lily, H., Armstrong, C.W., Brider, J., (2016) Defining “serious harm” to the marine environment in the context of deep seabed Mining, Marine Policy 74, 245–259, DOI: 10.1016/j.marpol.2016.09.032

Singh P.A. (2021) Deep Seabed Mining and Sustainable Development Goal 14. In: Leal Filho W., Azul A.M., Brandli L., Lange Salvia A., Wall T. (eds) Life Below Water. Encyclopedia of the UN Sustainable Development Goals. Springer, Cham. https://doi.org/10.1007/978-3-319-71064-8_135-1

Yadav, SS and Gjerde, K (2020). “The ocean, climate change and resilience: Making ocean areas beyond national jurisdiction more resilient to climate change and other anthropogenic activities”, Marine Policy https://doi.org/10.1016/j.marpol.2020.104184

Access to and benefit sharing of mineral resources in areas beyond national jurisdiction

The third challenge relates to environmental, equity and governance issues concerning access to and benefit sharing of mineral resources in areas beyond national jurisdiction. Part XI of UNCLOS deals with the international seabed (“the Area”) and its mineral resources, which have been designated as the “common heritage of (hu)mankind”. This designation of special status can be traced back to the 1960s at a time where there were concerns that these resources were only accessible to industrialized states if a “first come, first serve” approach prevailed. While Part XI of UNCLOS established the International Seabed Authority (ISA) and provided the regulatory framework for mining activities in the Area, the 1994 Agreement Relating to the Implementation of Part XI of UNCLOS significantly modified numerous provisions under UNCLOS.

Importantly, while negotiators of the 1994 Agreement acknowledged the importance of the protection of the marine environment from the harmful effects of mining activities, it was agreed to defer this important theme for the ISA to address later through its rules, regulations and procedures. However, it appears that the current approach to regulation taken by the ISA in this regard leaves much to be desired.

First, based on the financial models for payments to be made by contractors for exploitation that are currently under consideration (i.e. low payment rates), the ISA seems to be pursuing an approach to attract interest by incentivising mining activities. This “mining for profit” approach would only benefit a few actors while humankind as a whole endures the loss of the mineral resources and natural capital, which appears to contradict the intention of UNCLOS for mining activities to be carried out “for the benefit of (hu)mankind as a whole”.

Second, the interests of developing countries seem to be undermined by the current approach adopted by the ISA. In terms of equity, some reserved areas that have been set aside for developing countries appear to be accessed by private companies based in developed countries through the simple act of owning a company registered in a developing country. In terms of the sharing of benefits derived from mining activities in the Area, some calculations have indicated that States Parties to UNCLOS stand to receive only nominal sums annually, which would seem to be a valid reason to not permit such activities to occur especially since environmental losses and other aspects are not reflected in current financial models that are under contemplation.

Third, the ISA’s current approach heavily relies on contractors and the information that they provide to the ISA. For instance, the ISA does not conduct its own assessment and monitoring of environmental impacts and has very little influence on assessment and monitoring processes carried out by contractors, including very weak regulatory authority to reject deficient environmental impact statements or environmental management and monitoring plans submitted by them.

Finally, it is important to recall that UNCLOS was negotiated at a time where the deep sea was poorly understood. For instance, hydrothermal vents were first discovered in the 1970s at a time when the UNCLOS negotiations were ongoing, and many States considered the deep ocean to be bereft of life. The deep sea is now known to host an amazing variety of life from the water column to the deep seafloor and even the crust below. Nevertheless, it remains poorly understood and many knowledge gaps remain. However, based on what is known from current thinking on mining technologies and practices, such activities would cause significant and possibly irreversible harm, while restoration efforts based on current methods would clearly not be effective.

Consequently, as reflected in the World Conservation Congress resolution 069 on Protection of deep-ocean ecosystems and biodiversity through a moratorium on seabed mining adopted by the vast majority of IUCN members in September 2021, a proper application of the precautionary approach would mean that exploitation activities should not be allowed to take place until the environmental impacts are better understood, suitable technologies and monitoring techniques have been developed, and the ISA is able to better manage and control the activities of contractors in a transparent and accountable manner. In this respect, we would like to once again reiterate the importance of achieving and giving effect to an ambitious post 2020 Global Biodiversity Framework and an equally ambitious BBNJ Agreement in relation to areas beyond national jurisdiction.

References

IUCN WCC Resolution 069 - Protection of deep-ocean ecosystems and biodiversity through a moratorium on seabed mining. https://www.iucncongress2020.org/motion/069 (adopted by IUCN members in Marseille, France, 11 September 2021)

Blue Marine Foundation, 2020. ‘In Clear Sight’. https://www.bluemarinefoundation.com/wp-content/uploads/2020/12/JC0260_Deep-Sea-Mining-Report_V6.pdf

Drazen,et al, (2020), Midwater ecosystems must be considered when evaluating environmental risks of deep-sea mining, Proceedings of the National Academy of Sciences Jul 2020, 117 (30) 17455-17460; DOI: 10.1073/pnas.2011914117

Jaeckel, A. (2020). Benefitting from the Common Heritage of Humankind: From Expectation to Reality, The International Journal of Marine and Coastal Law, 35(4), 660-681. doi: https://doi.org/10.1163/15718085-BJA10032

Smith et al, 2020.  Deep-Sea Misconceptions Cause Underestimation of Seabed-Mining Impacts Trends in Ecology & Evolution, 2020; DOI: 10.1016/j.tree.2020.07.002

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

In some crucial respects, UNCLOS falls short. However, this may not be the time to renegotiate UNCLOS as this would expose other important aspects that have long provided support for the international rule of law, such as the freedom of navigation. However the exercise of freedoms and rights needs to be subject to the responsibilities set forth in UNCLOS, and interpreted in light of modern conditions. These responsibilities and conditions need to be operationalized through revitalized and new international mechanisms. Implementing agreements such as the UN Fish Stocks Agreement and the emerging BBNJ Agreement are vital mechanisms to evolve and adapt UNCLOS to modern conditions.

But effective implementation of UNCLOS and its implementing agreements requires institutional support through empowered, global-level Conferences of the Parties; more effective science policy mechanisms such as scientific advisory bodies; strengthened mechanisms for coordination, cooperation and collaboration; and clear powers to advance implementation, secure compliance and hold States and international organizations accountable.

Decision-making processes may also need to be reformed to avoid the pernicious elements of procedural rules requiring consensus that allow one or two states to block adaptive and precautionary action by global and regional organizations, as the failure of international institutions to act will eventually erode the legitimacy of these bodies and lead to more stress on UNCLOS.

Moreover, the importance of ensuring that decisions are taken based on the best available scientific knowledge as well as reflecting local and traditional knowledge appears to have been neglected, especially at the various regional and global organizations with mandates on the marine environment.

Thus, there is an urgent need to ensure that appropriate mechanisms are in place to facilitate informed and transparent decision-making, as well as to allow for a large degree of deference to be given to advice and recommendations from scientific and technical experts in decision-making processes. This would align nicely with the precautionary approach as well as other norms of good governance. Without such appropriate mechanisms, there is a risk that decisions that are taken will be purely politically or economically motivated, while scientific evidence and other forms of knowledge get ignored or sidelined.

Apart from that, numerous provisions under Part XII of UNCLOS have received insufficient attention from States. In particular, States Parties have clearly fallen short with respect to cooperation, capacity building, transfer of marine technologies, promoting and supporting marine scientific research and ensuring coherence in environmental objectives and goals, both in areas within national jurisdiction as well as beyond. The BBNJ Agreement and the CBD Global Biodiversity Framework provide important opportunities to give effect to these provisions within the UNCLOS framework. Moreover, there is a need to ensure that various obligations and commitments prescribed under UNCLOS are given effect to by State Parties.[1]

With respect to deep seabed mining in the Area, the environmental, equity and governance concerns could be addressed through three procedures: the United Nations General Assembly by way of a resolution setting forth the specifics for a moratorium on deep seabed mining , including on the issuing new exploitation and new exploration contracts and adoption of seabed mining regulations for exploitation until sufficient safeguards are in place; the ISA Council and ITLOS by way of a request for an advisory opinion; and an ISA Review Conference under UNCLOS Article 155. While some have questioned the consistency of a moratorium with UNCLOS, such a moratorium would in fact better advance  ISA mandates for science, capacity building, benefit sharing and protecting  the marine environment from the harmful effects of seabed mining, and recognise the compelling need for better science and governance prior to opening the Area to mineral exploitation.

The role of the States Parties to the LOS (Law of the Sea) Convention (SPLOS) should also be reconsidered, and a more formally empowered Conference of Parties could replace the primarily procedural and budgetary meetings of the States Parties to UNCLOS. Regular meetings of States Parties are widely considered to be an essential tool for ‘living’ agreements, as otherwise they may become moribund and unable to adapt to changing circumstances. Thus, SPLOS should be revitalized to ensure that provisions under UNCLOS are duly respected and necessary measures (e.g. the convening of multilateral conferences) are taken to give effect to key provisions, including those under Part XII of UNCLOS, some of which have been highlighted above.

Finally, and in addition to the above, we would like to highlight three specific issues that require the urgent attention from State Parties and urge them to take immediate action in this respect 

First, there is a pressing need to halt the proliferation of flag States of non-compliance as well as sponsoring States of convenience (in the case of activities in the Area). In this regard, there is a need to further clarify the genuine link requirement between flag States and the vessels flying their flags as well as to verify the ability and capacity of States to exercise control over vessels in their registries, and to ensure that States that choose to sponsor activities in the Area are actually in a position to supervise and exercise effective control over sponsored entities, especially in cases where foreign entities are involved.

Second, there is also the need to consider a more directed finance mechanism to assist State Parties, particularly developing States and small-island States, in taking appropriate measures to ensure the effective protection of the marine environment. This is particularly critical for developing States with large coastlines or large marine spaces, which often lack the financial capacities to conduct observation,  monitoring and assessment activities, as well as to establish and maintain marine protected areas, and to conduct surveillance, inspections and enforce domestic environmental regulations. States seeking assistance in implementing UNCLOS do not benefit from direct access to the Global Environment Facility as more modern agreements do (such as the Convention on Biological Diversity, for example).

Third and lastly, it is also necessary to ensure respect for decisions or awards made by international courts and tribunals. Although State Parties to UNCLOS are bound to the compulsory dispute settlements provisions that are stipulated in Part XV, it is clear that a handful of States have abstained from participating in proceedings or where some recent decisions have been ignored, particularly by State Parties that also happen to be within the UN Security Council. This requires immediate attention, because while UNCLOS does contain some strong provisions on environmental protection, these may lose effect in reality if decisions or awards by international courts and tribunals are ignored or disrespected.

9. UK’s Maritime Strategy

The United Kingdom should play an active role and be a global leader in ensuring stronger environmental protection of the marine environment and promoting ocean equity. We suggest the following priorities for the UK Government regarding the future of UNCLOS and the international law of the sea.

First, and foremost, the UK Government should take concrete steps to ensure that climate and biodiversity considerations are fully reflected and incorporated into the international law of the sea by interpreting the relevant UNCLOS provisions as appropriate, and demand that the theme of ocean protection, climate change and loss of marine biodiversity are considered altogether at all appropriate multilateral discussions as common concerns of humankind. Building on the UK government's existing leadership in the Global Ocean Alliance for the 30 x 30 goal, a priority step should be galvanising support for an ambitious and expeditiously adopted BBNJ Agreement reflecting at minimum the elements in WCC Resolution 126 and a robust Global Biodiversity Framework. At the same time, the UK government should support efforts under the UNFCCC and the Paris Agreement to require parties to "consider how to integrate and strengthen ocean-based action in their existing mandates and workplans".

Second, the UK Government should call for or conduct a thorough review on how State Parties have collectively given effect to Part XII of UNCLOS, including but not limited to provisions that require State Parties to cooperate and come together to formulate rules, standards and best practices to ensure the protection of the marine environment and to develop and agree on scientific criteria.

Third, the UK Government should call for a review of current practices with respect to the flagging of vessels as well as sponsoring of mining activities in the Area, in order to ensure that definitions and regulatory requirements pertaining to genuine link and effective control are clearly set out and agreed upon in order to reduce and eliminate the proliferation of flag States of non-compliance and sponsoring States of convenience, which continue to pose a threat to marine environmental protection and ocean equity.

Fourth, the UK Government should push for a stronger application of the precautionary principle and approach in relation to human activities at sea, with a view of phasing out or avoiding harmful activities involving techniques that are known or expected to cause significant harm to the marine environment, such as bottom trawling fisheries, oil and gas activities in the Arctic Ocean and other sensitive sea areas, deep seabed mining, and large-scale marine geoengineering.

Fifth, with respect to deep seabed mining in the Area, the UK Government should, as a matter of priority, acknowledge the numerous environmental, scientific, regulatory and institutional challenges surrounding this novel and potentially destructive activity and embrace a more precautionary stance at the International Seabed Authority, in line with the recent IUCN WCC Resolution 069.

Sixth and finally, the UK Government should call for the establishment of appropriate mechanisms to ensure more transparency and accountability of international organizations (including autonomous international organizations such as the International Seabed Authority). Appropriate administrative oversight and procedures for complaints should be designed in this respect. Moreover, the UK government should also explore options to ensure that judicial processes and decisions of international courts and tribunals on matters related to the law of the sea and environmental protection are duly respected.

…….

Thank you for this opportunity to submit the WCEL Ocean Law Specialist Group’s responses to your inquiry.

Received 12 November 2021