Judge David Anderson – Written evidence (UNC0045)

House of Lords: Select Committee on International Relations and Defence

The United Nations Convention on the Law of the Sea 1982: fit for purpose in the 21st Century?

Submission by Judge David Anderson

As a member of the British Delegation. I took part in the negotiations for all parts of the Convention, as well as for the Implementation Agreement about Deep Sea Mining 1994 and the Straddling Fish Stocks Agreement 1995. In parallel, I advised on all aspects of the law of the sea in the Foreign Office, ending as Second Legal Adviser. On the nomination of France, I was elected by the States Parties to the Convention as a Judge of the International Tribunal for the Law of the Sea for a term of office from1996 to 2005. In 2013, on the nomination of the Netherlands, I sat as a Judge ad hoc in the Arctic Sunrise (Provisional Measures) case (Netherlands v Russian Federation) before the same Tribunal. I have published widely on the law of the sea (e.g. Modern Law of the Sea -Selected Essays,2008) and have taught as a Visiting Professor/Fellow at Durham University and University College London.

The following views, prompted by some of the oral statements heard online, are personal.

Nature and scope of the Convention

The Convention is a negotiated instrument, regulating most aspects of human activity in, on, above and under the seas and oceans. Its purpose, in the words of its Preamble, is ‘to settle, in a spirit of mutual understanding and co-operation, all issues relating to the law of the sea… ‘.  The reference to ‘all issues’ is significant. The Convention is a major instrument running to 320 articles and nine annexes. It is comprehensive in scope. Some issues are governed by detailed rules; others are dealt with by establishing a framework for the adoption of further detailed regulations. There are no serious gaps in the law, composed of the Convention (plus related agreements) and customary international law.

Some important issues

The issues addressed by the Convention included the maximum limits of the territorial sea (now agreed at 12 nautical miles) and other areas under national jurisdiction. The two decades before the start of the Conference were marked by disputes over the limits of national jurisdiction, following the failure of the fourGeneva Conventions on the law of the sea of 1958 to gain widespread support, resulting in ‘cod wars’ and the like. Such disputes about outer limits are now rare and just over half of bilateral boundaries have now been settled, mostly by agreement.

Another important issue for an island State with global interests such as the United Kingdom is the freedom of navigation. The Convention safeguards freedom of navigation and transit rights, including such important matters as innocent passage through the territorial sea and transit passage through and over straits used for international navigation (largely based on proposals made by the British delegation at the start of the Third Conference), as well as passage through and over archipelagic States.

Status of the Convention

The United Kingdom became a Party to the Convention in 1997, accepting its terms also in respect of the British Overseas Territories, many of which have extensive maritime interests including 200 mile zones.

The great majority of States are bound by the Convention; in practice, most non-Parties accept it or do not challenge it generally. Much of the Convention reflects customary international law binding all States.

The Convention constituted three new international bodies – the International Tribunal for the Law of the Sea, the International Seabed Authority, and the Commission on the Limits of the Continental Shelf. While the United Kingdom is represented in the Authority, there has not been an elected British Judge on the Tribunal since October 2005. It is important to ensure the presence on the Bench of lawyers with a common law background.

The Convention as a framework

The Convention sets out many agreed standards, principles and rules, together with a framework for their application. The framework is flexible. It allows for the adoption of new Conventions implementing broad principles: an example is the Straddling Fish Stocks Agreement 1995. The Convention also provides for standards and principles to be implemented by various ‘competent international organizations’, such as the International Maritime Organization in regard to matters such as traffic safety schemes in the Dover Straits and around groups of installations in the North Sea and the protection of the marine environment from pollution caused by shipping. The International Labour Organization has adopted the Maritime Labour Convention in order to protect seafarers’ rights. The Convention’s environmental principles and standards are also implemented through regional organizations, such as the OSPAR Commission for protecting and conserving the Northeast Atlantic and its resources. There are many other examples.

New developments and new problems can be addressed at the technical level. As safety and environmental standards need to be raised, the mechanisms for taking action are in place. As a recent publication by the British Institute of International and Comparative Law has shown, the Convention a ‘living instrument’ in many ways.

Human rights

Standards for the international protection of human rights are reflected in several substantive provisions in the Convention. A leading example is article 98 (Duty to render assistance to those in peril at sea). Article 73 limits the penalties a coastal State may impose for fisheries offences and article 292 provides for the prompt release of arrested vessels and their crews against a bond. Human rights were not overlooked at the LOS Conference and are not overlooked today in its implementation. International courts and tribunals interpreting and applying other articles in the Convention also apply standards for the protection of human rights, including considerations of humanity and restrictions in customary law on the use of force by coastguards etc in making arrests at sea.

Flag Sate Jurisdiction.

The rules on the jurisdiction of the flag State have been singled out for criticism. They have the merit of ensuring that there is always one State enjoying jurisdiction over a ship on the high seas and carrying the concomitant responsibilities. Past attempts to curb open registries and the use of ‘shell companies’ have largely failed and there is nothing to suggest that a fresh attempt would lead to a different result. In practice, flag State jurisdiction has been supplemented by coastal State jurisdiction in some situations and port State control or jurisdiction in certain other fields such as marine pollution and fisheries. Persons boarding a sea-going ship, whether a ferry or a cruise liner, place themselves under the jurisdiction of the flag State in many ways.

Flag State responsibility

As regards flag State responsibilities, article 94 (Duties of the flag State) - based on proposals put forward by the British Delegation in Caracas at the start of the Third Conference in 1974 - is relevant. Article 94 sets out these duties in some detail, drawing on best practice. Paragraph 2 requires the flag state to assume jurisdiction under its internal law over social matters on board. This includes suspected crimes committed on the high seas. Paragraph 6 lays down a mechanism for seeking a remedy for shortcomings on the part of the flag State in applying that provision: failure to remedy complaints could result in a charge of failure to comply with article 94 and even inter-State litigation under the Convention.

Submarine cables

As regards submarine cables, the legal regime, largely based on arrangements dating from 1884 and 1958, was modernised in the Convention of 1982. The rules apply to today’s fibre optic cables, just as they apply to the original copper cables. The International Cable Protection Committee works to promote compliance with the Convention and the rules of customary international law applicable to submarine cables. The rules on submarine pipelines were also modernised.

Annual Survey in the UNGA

Each year, the United Nations Secretary-General produces a Report to the UN General Assembly on Oceans and Law of the Sea which is then discussed by the Representatives in the General Assembly, leading to an annual Resolution. The work of the different UN bodies and as many as 40 inter-governmental organizations - global, regional and sectoral – is reviewed in the Secretary-General’s Report, together with the casework of the International Tribunal for the Law of the Sea and the relevant casework of the International Court of Justice and international arbitration tribunals. As regards human rights, Section V of the Report for 2020 is headed ‘Importance of the human dimension.’ (UN Document A/75/340). This and other recent Reports by the Secretary-General indicate that the system, set up just after the Convention’s entry into force, for reviewing developments in the implementation of the Convention and for coordinating work on global maritime questions is working.

Conclusion

The Convention was a major achievement of the 20th Century. It remains fit for purpose in the Twenty-first.

Received 12 November 2021