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

Viscount Waverley Excerpts

Monday 28th November 2022 Grand Committee

[Viscount Waverley (CB)]

My Lords, I identify with much of what the noble and gallant Lord said, and I congratulate the noble Baroness, Lady Anelay, and her committee. I should reflect on the committee’s first conclusion that

“Enforcement is a weakness of international law”,


which I will build into my principal remarks on Russia, China and NATO, including the United States, on matters Arctic.

I will refer to practical challenges on the excessive claiming of maritime zones, given legal problems with UNCLOS permitting states to claim or designate exclusive economic zones—EEZ status—around uninhabited islands and rocks, thus extending territorial rights. Notwithstanding the Philippines-China case study, and China building rocky outcroppings into major installations, with airfields in the Scarborough Shoal, this establishes a quandary on how international law will adapt when islands must be above high tide and when the sea level rises through climate change. Does the state lose EEZ status if an island is submerged or is the reality, in practice, that a ruling against yields little or no practical effects, with limited arbitration processes to adjudicate on the question of propriety on “that rock”, in terms of claiming it to be an exclusive economic zone? This requires examination.

More generally, is it the case that domestic law must incorporate international law to take effect and so have legitimacy? How does the United Kingdom view international law and are all NATO countries aligned? Do China and Russia recognise the provisions of UNCLOS?

In this challenging year of global power competition, this report on the law of the sea correctly surmises that the Arctic shipping route along Russia’s northern coast—commonly referred to as the northern sea route, or NSR—has long-term security implications. President Putin attaches enormous significance to the NSR and the economic development of the Russian Arctic. As a petrostate, many of Russia’s remaining oil and gas prospects lie in the Arctic, along with significant minerals and other resources. For the Kremlin, energy is bound up with Russian national security and is a principal means of projecting influence abroad; it is deemed to have become strategic in the post-2020 framework, as global competition for resources and markets intensifies.

Putin has also ordered that shipping along the NSR reach 80 million tonnes by 2024, from 30.5 million tonnes in 2019. If fully realised, the vision of the Russian Arctic would be a string of resource hubs producing oil, gas, coal and minerals, linked by a vibrant international shipping route that could take resources west to Europe or east to Asia, as the geopolitical and economic winds blow. Russia has formally designated the waterway that runs from the Kara Sea in the west to the Bering Sea in the east. Along the way, the NSR runs through several straits separating the Russian mainland from adjacent islands—Novaya Zemlya, Severnaya Zemlya and the Novosibirsk islands. The Soviet Union drew straight maritime baselines around these archipelagos, enclosing them and declaring the adjacent straits to be internal waters; in making this an internal waters designation, the Soviet Union relied on UNCLOS language on “historic title”.

Here is the difficulty: Arctic waterways have not historically been used for international passage, given their frozen condition. This legal argument is therefore time-sensitive, as navigation is increasingly practicable. The Soviet Union also pointed to UNCLOS Article 234, which grants coastal states special abilities to manage ship traffic in ice-cold waters—another legal base that may be eroding in the Arctic. Here and now are important, but it is the potential quandaries 10 years down the road that make long-term policy decision-making—including on considerations of access to Arctic natural resources, be they fisheries, mining, or oil and gas reserves—essential and political.

The Russian Arctic is already responsible for roughly one-quarter of Russian GDP and the importance of the region will only grow. Given this, the region is of core national importance to Russian leadership, and it is no surprise that the Russian military has been arming it.

Russia has military components in the Arctic—including longer-term play by China, to which I will refer in a moment—and security interests. It has established a military presence there. There is increased aeronautical traffic, including in recent years the installation and refurbishment of advanced radar systems, airfields, small bases and air force missile systems, and Russian strategic capabilities on the Kola Peninsula—the major concentration on the western side of the NSR—have advanced.

Then there is China’s increasingly ambitious current activity and plans in the Arctic. We should not lose sight of the fact that China was a related signatory as far back as 1925 but, not wishing to be left out, it has recently opened its first scientific research station in the Arctic, because of its economic value. This coincided with China’s first Arctic policy White Paper in 2018, outlining its polar silk road plan and defining China as a near-Arctic state.

Should China’s interests be viewed as an opportunity or a threat? It is important to understand the drivers behind its ramping up of activities in the region, particularly in the shaping of economic development, with the NSR opening a new sea lane with a seven-day sailing time from Shanghai to New York.

It is significant that the war in Ukraine has significantly depressed shipping along the NSR, in particular by foreign vessels, with China’s main shipping company, COSCO, sending zero vessels through the NSR in 2022. It is unclear to what extent China’s interests are a larger strategic play, and to what extent it is being fully transparent. It is clear that China intends to be involved in the governance of the Arctic, with the introduction of the new polar code.

It should be on record that China is interpreting the Arctic and South China Sea issues in different ways, with the core differentiator being sovereignty, and the Arctic being about access. China says that it wishes to enter into strategic and economic partnerships with Arctic and non-Arctic states in new ports and communication infrastructure, thus expanding its belt and road initiative. This has relevance when considering global supply chain issues.

What of the response and strategy by NATO, and particularly the United States, the Arctic Council and observers such as the United Kingdom in all this? Are we to abide by international laws and norms? The Arctic has always had a strategic relevance for NATO as the gateway to the north Atlantic, with the hosting of vital trade and communications links between North America and Europe, so ensuring that the Arctic remains free and open must surely be a priority. However, the United States contests the Soviet—now Russian—designation of the straits along the NSR as internal waters, so the question remains whether the US and UK should conduct a freedom of navigation operation in the Russian Arctic, as has emerged in recent years in conjunction with tensions with Russia.

There are, however, important legal and operational questions about the particulars of the NSR, and the prospect of a FONOP is questionable. An added wrinkle is presented by Canadian claims in the Northwest Passage, which closely mirror Russian claims in the NSR. The United States deems both sets of claims excessive. Therefore, Russia’s NSR presents a set of diplomatic challenges to policymakers from a freedom of navigation perspective. I am curious to hear from the Minister the thinking behind what rights non-Arctic stakeholders have—or will have.

If all that was not enough, the list of factors goes on, with the critical undefined climate considerations that could haunt the generations to come. As a whole, the Arctic region is warming faster than any other part of the globe. For example, the Norwegian islands of Svalbard have already warmed 3 degrees centigrade since 1979. The Barents Sea subregion is warming especially quickly, in both air and sea temperatures.

One practical impact of this warming is that the Northern Sea Route is now ice-free for a longer period each year. However, it is important to note that the NSR is frozen in the winter, and the spring and fall “shoulder seasons” are unpredictable. In 2021, more than 20 vessels in the NSR were trapped in ice when an early freeze-up took shippers by surprise.

What is the strategy on the development of deep-water ports, search and rescue issues and oil spills? How do the complexities of the mandatory provision for all ships to be escorted by Russian icebreakers play out? A crucial question is what the role and purpose of the Arctic Council moving forward will be. As and when the Arctic moves up, there will be a probability of more states wishing for recognised observer status, which may entail Chinese push-back. Could or should the council’s role be better defined—questioning the overall effectiveness of UNCLOS, with the need to strengthen it more generally?