UNCLOS: The Law of the Sea in the 21st Century (International Relations and Defence Committee Report)

Baroness Anelay of St Johns Excerpts

Monday 28th November 2022 Grand Committee

Moved by

[Baroness Anelay of St Johns]

That the Grand Committee takes note of the Report from the International Relations and Defence Committee UNCLOS: the law of the sea in the 21st century (2nd Report, Session 2021–22, HL Paper 159).

[Baroness Anelay of St Johns (Con)]

My Lords, I am pleased to introduce our report UNCLOS: the Law of the Sea in the 21st Century, which was published on 1 March. It is almost 40 years to the day since the United Nations Convention on the Law of the Sea was adopted by the UN General Assembly. The convention established for the first time a comprehensive international framework for the governance of the world’s seas and oceans. Our committee decided to take that anniversary as an opportunity to examine whether UNCLOS remains fit for purpose in the light of 21st-century challenges.

I thank the members of the International Relations and Defence Committee; our specialist adviser, Dr Reece Lewis; and the committee staff for their contributions to the report. I also declare an unpaid interest as chair of trustees of the United Nations Association UK.

The adoption of UNCLOS in December 1982 was the outcome of more than 25 years of international negotiations and represented a major milestone in international law. The clear consensus among those who gave evidence to us was that the convention has been a success in regulating maritime relations between states. UNCLOS has delivered significant benefits for the UK and for the wider international community. These benefits include enshrining the principle of freedom of navigation; establishing standardised rules for states’ claims to maritime zones; creating a framework for co-operation on issues such as marine resource management, maritime security and environmental protection; and providing stable mechanisms for dispute settlement. Our inquiry concluded that many of the core rules of UNCLOS remain important in today’s world. Moreover, it is in the UK’s interests to ensure that they continue to be upheld.

In recent years, however, challenge has come from China to some of the fundamental tenets of the UNCLOS system by making exorbitant claims to territorial jurisdiction over waters in the South China Sea. That impacts on other states’ rights to freedom of navigation. It is vital that the Government continue to work with international partners to challenge such actions and ensure that the rules of international law are observed.

Despite the UNCLOS success story, there are weaknesses in the current legal regime. The enforcement of the rules against ships on the high seas is inconsistent. There are gaps in regulation, including on human rights and emerging technologies such as maritime autonomous vehicles. The rules of UNCLOS have not adapted to the pace of climate and environmental degradation. The international community, and of course the UK, must find ways to address these challenges. Today I shall focus on just three of those challenges: enforcement on the high seas, human rights at sea, and climate and the environment.

Under international law, states are responsible for enforcing the law within their own territories, but large swathes of the world’s oceans, known as the high seas, are beyond the territorial jurisdiction of any state. UNCLOS seeks to address the risk of an enforcement vacuum over ships on the high seas through the principle of “flag state jurisdiction”. Under that principle, the state in which a ship is registered is required to “effectively exercise” its jurisdiction over its ships and their crew, including in relation to maritime safety and security and labour conditions on board. UNCLOS also requires that ships should have a genuine link with the state of registration. That facilitates better enforcement.

In practice, however, a very large proportion of the world’s shipping is flagged to open registries, otherwise known as flags of convenience. Open registries have lax conditions for registration and a limited capacity to take enforcement action against non-compliant vessels. The evidence to our inquiry demonstrated that this poses a significant challenge for maritime security and wider law enforcement at sea.

The international community made an attempt to tighten the rules in 1986, through the UN Convention on Conditions for Registration of Ships, but this treaty has never entered into force due to a lack of acceptance by states, including the United Kingdom. In response to our report, the Government acknowledged the risks posed by open registries, but they did not engage fully with our recommendations initially. In particular, they did not clearly explain why they had not joined the 1986 convention. However, following further correspondence with our committee, the Government have now committed to engaging with the International Maritime Organization and to taking a leading role in reviewing the 1986 convention to bring it up to date as a means of reinforcing the need for a genuine link between ships and their registries. I welcome this commitment to improving flag state enforcement and look forward to receiving further updates from the Government as these discussions progress.

The protection of human rights at sea is a real concern, which UNCLOS does not address adequately. Human trafficking, modern slavery and forced labour, including in the context of illegal, unregulated and unreported fishing activity, all present pressing human rights challenges at sea. There are barriers to effective protection caused by conflicts of jurisdiction over vessels in different maritime zones and a lack of effective enforcement through flag state jurisdiction on the high seas. As a result, remedies for human rights abuses are often unclear or unavailable.

It is right that people at sea should benefit from the protection of human rights law just as much as those on land. However, the Government appear to take a narrow view of human rights protection at sea: in their evidence to our inquiry and responses to our report, they have focused mainly on labour rights, which are important but not the only matter of concern.

Our committee called on the Government to adopt a clear and unequivocal position on the application of human rights law at sea. Regrettably, they have not done so. In his latest reply to our committee, my noble friend the Minister acknowledged that human rights obligations

“are capable of applying … at sea … provided that there is jurisdiction”.

But this suggests that the Government take the view that there are circumstances in which human rights do not apply. I invite my noble friend the Minister to explain his position further today and indicate what the Government’s current plans are to work with international partners to improve the protection of human rights at sea. I believe, and the committee agrees, that the UK should set an example internationally in this regard.

We asked the Government to explain what remedies are available in the UK for victims of human rights abuses at sea. The Government’s reply refers only to the possibility of submitting a complaint to a Maritime and Coastguard Agency surveyor—and yet the primary role of such persons is ensuring the safety and seaworthiness of vessels. It is also not clear whether MCA surveyors have the power to receive complaints other than in relation to labour rights. I therefore invite my noble friend the Minister to explain further whether the remedies set out are sufficient to allow access to justice in the UK for victims of human rights abuses at sea.

Climate and the oceans are vital to us; they are inextricably linked. The oceans play a unique role in climate regulation by absorbing carbon emissions. At the same time, climate change has a significant impact on marine ecosystems. While UNCLOS imposes obligations on states regarding environmental protection, it does not directly address climate change. Until recently, international efforts to tackle climate change through the United Nations Framework Convention on Climate Change did not give the oceans the attention they deserve. Greater co-ordination is required between UNCLOS and the UNFCCC processes to ensure that the effects of climate change on the oceans are fully covered.

We will all be aware that a welcome step forward on this was taken last year at COP 26 in Glasgow. I invite my noble friend the Minister to report in his reply on any further progress made in this regard at this year’s COP 27, in Sharm el-Sheikh earlier this month. I would also be grateful if my noble friend could update Members today on whether any progress was made earlier this month at the council meeting of the International Seabed Authority on negotiations to agree exploitation regulations with respect to deep sea mining. My noble friend will be aware that some Members of the Committee have taken a significant interest in these matters over the last few years.

UNCLOS is a living treaty. It provides a framework for states to develop the law over time. Our report has shown that there are areas where further development is needed to address pressing challenges. As a major maritime power, the UK is in strong position to contribute to this. I hope that the Government will accept our challenge to step up to their leadership role in reforming or supplementing UNCLOS rules in these areas, as well as standing up for the fundamental principles of maritime law which have made UNCLOS a success over the past 40 years. I beg to move.

--- Later in debate ---

[Baroness Anelay of St Johns (Con)]

My Lords, I thank everybody who has participated in this debate. My noble friend Lady Fall made the point that some may think this is a niche subject; it has proved to be anything but. I will let colleagues into a little secret: I do not decide what an inquiry is to be on. I put together a list, with the help of colleagues. I ask them to volunteer suggestions, the secretariat comes up with suggestions, then I ask colleagues on the committee to give two votes for their first choice and one for their second. The result was a 90% decision in favour of an inquiry on UNCLOS. At the time, this was a surprise to some outside our committee, but our committee then proved that it was absolutely the right thing to do because, as noble Lords have said, we face tremendous challenges on the high seas and on waters everywhere with regard to security, climate change and human rights.

I thank the Minister for some of the updates he has given today. Clearly, we need to consider our future response regarding the security of subsea cables far more, an issue on which we took evidence but that is now front and centre of security threats across the Atlantic. We have seen alleged Russian mischief with regard to gas pipelines. It is not only cables and pipelines; there are many aspects of security at sea that threaten not only our physical but our economic security.

We recommended that the Government should not renegotiate. I agree entirely with the Minister: if that happened, it is likely that there would be no agreement. Sadly, I think of human rights issues and gender equality in that regard, in this period of 16 days of trying to end violence against women and girls; I do not think the Beijing agreement would have a hope in hell of being agreed today, so thank goodness it is there.

As noble Lords have made clear throughout, in order to have enforcement, you need multilateral agreements. One problem is that when China gets involved in multilateral negotiations, it likes to drive the definition. Throughout all the discussions, whether at the United Nations or elsewhere, it is clearly trying to steer the rest of the global community away from what has been a view of compliance with international law and international humanitarian law. It is trying to redesign that. That is where the UK needs to ensure that its voice, which has been loud, continues to be so and continues to be heard. There is much that the UK can do, and it can do it not only as a Government but with the assistance of experts. I point out that our inquiry drew attention to the fact that there are British experts, whether they be judges or academics, who can make a real contribution to international knowledge and agreement.

I am grateful to those who gave evidence to us because they pointed the way. We followed. We then made sure that we analysed that with the help of the inestimable ability of our secretariat, and we put the report before your Lordships today. I beg to move.

Motion agreed.