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

Lord Goldsmith of Richmond Park Excerpts

Monday 28th November 2022 Grand Committee

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, I thank my noble friend Lady Anelay for tabling this debate and the committee for its excellent work. I understand that we may be interrupted by a Division. We will come back to whichever point I get cut off at, if that happens, but I will try to progress as much as I can before that.

A lot of questions have been asked and a lot of points made, all of which have been noted. I will do my best to provide as much of an answer as I can, but I hope noble Lords will be indulgent, given that to do so comprehensively would take us into the early hours. I will cover as much as I possibly can.

We welcome this inquiry, for all the reasons that have been acknowledged by the speakers in this debate. I thank all noble Lords for their consideration and their insightful contributions. This year, as has been noted, marks the 40th anniversary of the UN Convention of the Law of the Sea, so this is a timely debate as well as an important one. Throughout the inquiry, including in my evidence to the committee, I have explained how the convention has benefited the UK and the wider international community. I have also noted the challenges that exist in implementing it and the action that the UK is taking.

Because of the time allowed for the debate, I will not deal with all the committee’s conclusions and recommendations now, although I have done so through various bits of correspondence with the committee. I shall touch on some of the key points and ancillary points that have been raised in the debate. As has been acknowledged, UNCLOS is a major achievement of diplomacy and international law. It provides a detailed codification of the law of the sea. With 168 state parties, it has made a significant contribution to global peace, prosperity and security by providing a comprehensive framework for the governance of the ocean.

The UK has directly benefited in numerous ways, not least with regard to maritime boundaries with neighbouring state, both domestically and through our network of overseas territories. UNCLOS also provides a framework to co-operate with our neighbours on resource management, tackling crime and protecting the environment—all points that have been raised by numerous speakers in today’s debate.

UNCLOS freedoms have enabled us to conduct marine scientific research around the globe. Those freedoms also enable the transport, communications and energy connections between nations that underpin both the UK’s and the global economy. The UK is an active state party to UNCLOS. We are strongly represented on key bodies, including the International Maritime Organization, the International Seabed Authority, the Intergovernmental Oceanographic Commission and the International Hydrographic Organization. UNCLOS therefore provides a clear, comprehensive framework within which states are able to co-operate.

I want to look at some of the challenges that we and UNCLOS face. As the committee has recognised, attempting to renegotiate UNCLOS would—I will come back to these arguments in a few moments.

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[Lord Goldsmith of Richmond Park (Con)]

As the committee recognised—a number of noble Lords have made the point as well—any attempt to renegotiate UNCLOS would not attract support from many states and would risk undoing the really delicate balance that has been struck in the existing text as well as many of the benefits we currently enjoy. Where matters require further legal rules, it has been shown that this can be achieved by negotiating supplementary implementing agreements to UNCLOS, or through additional agreements that rely on the framework provisions of UNCLOS.

A number of speakers, including my noble friend Lady Anelay, have raised a question that was in the committee’s report as to whether we support a unified approach to human rights at sea. The Government clearly share the committee’s concerns over the many instances of human rights abuses at sea—we have heard some of them today. It can be challenging to uphold these rights for those working away from home. Incidents at sea are often invisible to authorities ashore and there are jurisdictional complexities, which have been noted. We recognise that these abuses are often linked with a broad range of troubling issues, such as modern slavery, drug trafficking, poor working conditions on vessels, crimes on ships and piracy, which the noble Lord, Lord Collins, referenced.

The noble Lord, Lord Collins, and the noble Baroness, Lady Goudie, raised another issue around our broader responsibilities for seafarers’ living and working conditions under our flag and in our ports. The UK is working with international partners and all the relevant international organisations to improve health, safety and living and working conditions for seafarers.

As the committee identified, some flag states are unable or unwilling to properly exercise oversight over ships entitled to fly their flag. This obviously poses a serious challenge for maritime security and law enforcement on the high seas. UNCLOS is very clear; it requires there to be a “genuine link” between the flag state and ships flying its flag. It also requires a flag state to

“effectively exercise its jurisdiction and control in administrative, technical and social matters”.

We and a number of the overseas territories and Crown dependencies operate ship registries and co-operate within the framework of the Red Ensign Group to ensure that these registries maintain the highest international standards. The UK and the Red Ensign Group recently passed an audit by the IMO. We continue to champion safety, security and working conditions at an international level, working with partners and drawing on the capabilities of our agencies, such as the Maritime and Coastguard Agency. We continue to improve understanding and robust enforcement of flag state duties and responsibilities. We continue to push for new standards to improve safety, security and working conditions right across the maritime sector globally.

Alongside that, I welcome the committee’s recommendation for strengthening port state controls. It was a point made by the noble Lord, Lord Teverson—in fact, he has made it to me a number of times in previous debates—and the noble Lord, Lord Collins. The UK takes this responsibility very seriously. Over the last three years, we have inspected nearly 3,500 ships, and 96 of them were detained for violations of the International Safety Management Code.

Equally seriously, to prevent illegal, unreported, unregulated fishing catches from entering our supply chain, the UK is one of 100 states—I said that as if it were a big number; it is not a big number—to have endorsed the agreement on port state measures, a key international framework for the prevention of IUU fishing. Clearly, 100 states is not nothing, but it is not nearly enough. This is something that really needs to become ubiquitous if we are to close the loopholes that allow illegal fishing to flourish in the way that it does.

As an aside, at the UN Ocean Conference in Portugal, I spoke to the Prime Minister of the Cook Islands, who told me that four in every five fish caught in his country’s waters are stolen. You can imagine what that means in terms of revenue for a small-island state of that sort. The same is true right across the Pacific. Even large countries such as Indonesia are finding it almost impossible to deal with IUUs, so you have no hope if you are a small-island state in the Pacific or the Caribbean.

Where there are disputes, we urge parties to settle them through peaceful means. This includes using existing legal mechanisms, particularly those established by UNCLOS. Coercive activities in the South China Sea, cited by a number of speakers, directly undermine and are at odds with the principle of freedom of navigation provided for in UNCLOS. The UK is committed to international law, to the primacy of UNCLOS, and to freedom of navigation and overflight. That is as true in the Arctic as it is in the South China Sea and everywhere else. The UK takes no sides in the sovereignty disputes, but we have regularly raised concerns with China over its conduct in the South China Sea.

The Government share the committee’s views on monitoring carefully the development of maritime autonomous vehicles. We instigated a regulatory review to address, among other things, security concerns raised by autonomous technologies and implications for their use by organised criminals and other malign actors. We share the committee’s praise for the Royal Navy’s work to determine how maritime autonomous vehicles fit within the existing legal regime. The UK will continue to work with our partners and take a lead at the IMO to develop regulations to govern maritime autonomous vehicles within the framework of UNCLOS.

A number of noble Lords mentioned one of the consequences of climate change: the effect of rising sea levels on small island and coastal states. The Government acknowledge the committee’s concern about the potential impact of sea level rise on determining maritime zones. As the Grand Committee will understand, this is a complex matter that will affect all coastal countries, particularly vulnerable small island developing states. We are continuing to review this issue with international partners. I have discussed it many times with representatives from small island developing states, particularly in the Pacific, who are asking the international community to engage on this issue. We are doing that, but it is complex, as has been noted.

We continue to work with the SIDS, or small island developing states, to drive global ambition more generally on emissions reductions and support adaptation and mitigation. It was the passion and moral authority of the small island developing states that enabled us to go further at COP 26 than we otherwise might have been able to go. The UK Government have a number of programmes helping SIDS to strengthen their resilience to climate change. That includes the £36 million sustainable blue economy programme, dedicated to supporting resilient ocean economies and marine environments under the flagship Blue Planet Fund. My noble friend Lady Fall talked about the blue belt, but there is a link. The Blue Planet Fund is our relatively new £500 million fund. It has a very broad remit and is doing excellent work, thanks to colleagues in both Defra and the FCDO. Many programmes are developing under the Blue Planet Fund, but some are designed to contribute also to our international development strategy vision to see SIDS achieve economic and climate resilience by 2030.

In response to my noble friends Lady Rawlings and Lady Fall, and the noble Baroness, Lady Goudie, on climate change, COP 26 undoubtedly raised the profile of oceans within the context of climate. We established the link between nature and climate more generally. We made it clear, and I think it is accepted, that there is no solution to climate change without nature; there is no net-zero plan that is credible unless it has nature at its heart. That is true of the terrestrial environment; it is true even more so probably of the ocean environment, for all the reasons cited by the noble Lord, Lord Teverson. We raised the status of oceans significantly. That was continued at COP 27, where the Glasgow legacy was cemented. We welcome the progress that was made on that under the Sharm el-Sheikh implementation plan.

A particular focus of COP 27 was on the need for more investment in nature-based solutions to climate change, in recognition that ecosystems such as mangroves, seagrass and sword-grass—and coral reefs as well—are crucial for not only mitigating climate change but adaptation. We have seen some really ambitious programmes around the world that respond directly to the threat of the reality of climate change today and are manifesting in nature-based solutions. Indonesia is planting 600,000 hectares of mangroves—probably the most ambitious coastal restoration programme in the world—and it is doing it, not just talking about it. When Colombia was hit by record storms two years ago, it was noticed that the communities where the mangroves and coral reefs had been degraded were destroyed by the storms, whereas those communities which still had mangroves and coral reefs were battered but not destroyed. As a result, an incredibly ambitious programme of restoration of coastal ecosystems has begun, as a protection or insurance against continued escalation and change.

I will not talk about the blue belt, because my noble friend Lady Fall has already mentioned it, other than to say that it is genuinely one of the great stories of conservation in my lifetime. We now have over 4.5 million square kilometres of extraordinarily valuable and unique ecosystems fully protected, as a consequence of the work of our wonderful overseas territories. It really is a wonderful programme and to those who are not aware of it, I say please look into it, because it is not discussed enough. I think it is a wonderful thing and a source of real pride for the UK.

The noble Baroness, Lady Anelay, and a number of others raised deep sea mining. This, too, is an emerging and undoubtedly very real threat to the marine environment. As your Lordships would expect, we are fully engaged in the ongoing negotiations at the International Seabed Authority with respect to deep sea mining. I note the comments of the noble Lord, Lord Teverson, about the French position. In fact, there was a bit of a wobble there: he might remember that at the Portugal summit there was an announcement that it would push for a moratorium, which was then reversed. Thankfully, the position was reinstated more recently in the run-up to COP 27, so I and the UK Government welcome France’s position.

Like many here, I suspect, I would prefer to see no deep sea mining at all. The risks are immense and the effect of pollution or things going wrong when you explore in the way that deep sea mining would involve could be catastrophic. We know that pollution travels in a particular way in water, and that the effects are much greater than on land. This is a genuine threat that has not been taken sufficiently seriously.

Our formal position in the UK is that we will not sponsor or support the issuing of any exploration licences for deep sea mining until and unless there is sufficient scientific evidence about the potential impact on deep sea ecosystems, as well as strong and enforceable environmental regulations, standards and guidelines that are meaningful and will provide the kind of genuine protection necessary. We do not use the term “moratorium” but that is the effect of the policy which we stand on. The bare minimum is a position which says, “No action until we are absolutely sure we can do so safely”. It may be that we can never do so, and that science comes about and tells us that we simply cannot engage in deep sea mining in a way which is responsible, in which case our position must reflect that. I suspect that it will be another Minister standing here by the time such a decision is reached, but my view is that we must maintain the precautionary approach we have at the moment.

The UK Government have commissioned an independent peer-reviewed report by experts from the British Geological Survey, the National Oceanography Centre and Heriot-Watt University, which was published on 31 October this year. Defra, FCDO and JNCC officials have recently returned from the ISA Council negotiations in Kingston, Jamaica, where progress is being made. We are working closely with international partners to ensure the highest environmental standards are embedded in the regulatory framework of the ISA, with the view to those regulations being adopted some time in the middle of next year, if they are agreed.

I move on to an issue raised by a number of speakers, including my noble friend Lady Anelay, in her opening speech, and my noble friend Lady Rawlings: biodiversity beyond national jurisdiction. The UK is clearly pushing hard for an ambitious agreement, and we want it to happen as soon as possible. The UK played a key role in the recent intensive negotiations in New York with a view to reaching this agreement. I pay tribute to our officials, who did a phenomenal job.

At the UN Ocean Conference in Lisbon in June, with their help, I brought together key Ministers to try to find a way forward on the tricky issue of monetary benefit-sharing linked to marine genetic resources. The idea there was to talk to some of the developed countries and persuade them to be a little more relaxed about their red lines. You can debate for a thousand years but, if your red lines never move, the debate becomes almost impossible. I think we did move some of those countries and, with the UK in the driving seat, were able to craft an offer to developing countries that is being taken seriously.

We also led work on MPAs, with WWF and other key delegations, by brainstorming ideas and co-chairing discussions during the negotiations to ensure that we achieve more than just “paper parks”. We will continue to bring together delegations and interest groups to help achieve consensus before the formal negotiations resume in February 2023. This is a priority for us. We recognise that the UK has done a lot of work drumming up support for the 30x30 target, which I hope will be agreed in Montreal in a few weeks—protection for 30% of the world’s land and ocean by the end of the decade. If we agree it but fail to agree the ambition at the level of biodiversity beyond national jurisdiction, we cannot deliver 30x30, because it is necessary to deliver much of that protection target by protecting the high seas.

If I have time, I have one further point in response to my noble friend Lady Rawlings and others on security in the Arctic. Global warming is clearly causing numerous profound changes, specifically and disproportionately in the Arctic. Melting sea ice is opening up new sea routes which, in turn, create opportunities for exploitation that were not there formerly. It would be wrong not to recognise that those opportunities exist but, equally, that opening up these routes also creates the possibility of extreme exploitation of the sort articulated by the noble and gallant Lord, Lord Stirrup, on illegal fishing and the ravages that can be caused by some of the gigantic floating factories that he described.

We are committed to supporting our allies and partners through the appropriate regional forums, such as the Arctic Security Forces Roundtable, where we share information on the changing environment, improving collective awareness and deconflicting activity in the Arctic. We are looking for opportunities for continuous further co-operation.

In response to the noble Viscount, Lord Waverley, on Russia, we continue to monitor closely and assess the approach adopted by both Arctic and non-Arctic states including Russia—not least its military postures and any activity that violates international norms and agreements, such as UNCLOS.

A number of speakers asked me to talk about subsea cables. I just point to the first government response to the committee—I am afraid that I do not have the date—where there is a fair bit of information on this issue and the Government’s position on protecting those cables. Needless to say, like the committee, we regard undersea communication cables and infrastructure generally to be critical to national and international connectivity and security. I very much share the concerns noble Lords raised.

To conclude, the International Relations and Defence Committee’s report makes a valuable contribution to an enormously important topic. We welcome the committee’s scrutiny of our approach to UNCLOS and the suggestions and ideas within the report. I once again emphasise my thanks to my noble friend Lady Anelay for tabling this debate and to noble Lords for their contributions.