UNCLOS: fit for purpose?

UNCLOS – the law of the sea

Steven Haines examines the achievements and shortcomings of the UN Convention that has governed our use of the oceans since 1982

It is just over half a century since the Maltese Ambassador to the United Nations, Arvid Pardo, delivered a speech to the UN General Assembly calling for the oceans to be declared the ‘common heritage of mankind’. That speech initiated the process (UNCLOS III) that led eventually to the 1982 UN Convention on the Law of the Sea (1982 UNCLOS), widely regarded as the ‘Constitution of the Oceans’. It is now close to a quarter of a century since it entered into force, in November 1994. A lot has happened since.

What has changed since UNCLOS III?

International jurist Hugo Grotius (1583–1645) was the first to develop the concept of mare librum – freedom of the seas. Circumstances have changed, with territorial disputes, overfishing and environmental degradation now becoming issues of global concern. Photo: Wikimedia Commons / PD

The volume of maritime trade is four times what it was in the early 1970s, when the lengthy negotiations that resulted in the Convention began. Ocean resources are now more obviously under threat than at any time in history. The effects of climate change – not a serious agenda item five decades ago – and the consequences of marine pollution are now at last taken seriously, if by no means adequately dealt with.

Technology develops daily in so many different ways. Unmanned, autonomous shipping is one likely area of innovation, as are major developments relating to resource exploration and exploitation. Demand for ocean resources is fuelled by substantial increases in global population and phenomenal economic growth in regions formerly undeveloped.

There are more people at sea today than at any time in history. Many are working in dreadful conditions and far too many are being trafficked, with their human rights entirely ignored. International human rights law was virtually non-existent in the early 1970s, and its relevance at sea was simply not on UNCLOS III’s agenda.

There are more navies and other maritime forces today than at any time in history, but even the largest (the US Navy) cannot dominate as the Royal Navy once did during the nineteenth century Pax Britannica. Many navies are coastguards in all but name, and coastguards themselves have proliferated, as coastal states have attempted to bring some sort of order to their offshore zones.

Regulation, governance – and enforcement

The Law of the Sea was not frozen in time in 1982. Indeed, it has changed significantly in a number of ways. The International Maritime Organization (IMO), for example, has been responsible for the development of a great deal of regulation, and there are currently over twenty IMO conventions. Beyond the work of the IMO, there has been a proliferation in laws and regulations, especially to do with fisheries, marine pollution, and the general protection of the oceans. There is a great deal more law today than there was before UNCLOS III.

Negotiating and drafting laws is only one stage in the process of effective regulation and sound governance, however. Without a means of monitoring compliance and enforcing the law when it is ignored or breached, that law would be virtually worthless. In theory, at least, when the law is broken within areas of coastal-state jurisdiction, it is the adjacent state that should take necessary enforcement action. Far too often, however, coastal states – especially the poorer ones – simply do not have the wherewithal adequately to police their own waters. This is indeed a major problem, and one that needs to be addressed. Nevertheless, it is on the high seas where the law is at its weakest. No single state has a responsibility to police this vast area; nor is there an international authority effectively empowered to do so.

Beyond the reach of the law

Maritime crime is on the rise. We all know about piracy, of course, especially as a consequence of the recent activities of Somalia based pirate gangs. But piracy is not restricted to that region or time – it has always been a feature of far too many coastal areas globally. Smuggling is also big business, with sophisticated criminal groups operating to sustainable business plans. There is clearly a problem, and it seems that the current constitution of the oceans is lacking a means of dealing with it.

The notion of ‘free seas’ – mare liberum – not only grants freedoms to legitimate users of the oceans but also provides opportunities to those intent on taking criminal advantage. The freedom of the high seas was seen as a vital element of ocean governance at the time of UNCLOS III, so much so that widespread agreement would not have been possible without it being enshrined in the convention.

Anarchy is a contentious word, but it has some relevance when applied to the open oceans. A fundamentally important provision of UNCLOS was that only flag states would have jurisdiction over their registered ships in international waters. Sadly, this makes it extremely difficult to police the oceans. The vast majority of vessels go about their business well beyond the reach of their states of registry. Not even the major maritime powers can police their fleets effectively. And the large open registries simply don’t have navies or coastguards of any substance – their fleets sail the oceans without any flag-state monitoring.

Where is UNCLOS IV?

It is a serious concern that the framework provided in UNCLOS fails to meet the needs of effective ocean governance. Despite this, there is no international appetite for the negotiation of a new comprehensive arrangement for the seas as a whole. Indeed, it is difficult to the point of being impossible to imagine the negotiation of a new convention. There is no UNCLOS IV in prospect, and it is most likely that the general arrangements we have will remain in place for many years to come.

Having said that, there is now a growing movement to deal with resource exploitation and environmental challenges on the high seas. Indeed, negotiations are beginning to produce a convention under UN auspices for that very purpose. But as with so many attempts to regulate the oceans, unless the agreement that emerges includes a realistic method of ensuring universal compliance and the provision of an effective enforcement mechanism, it will fail to achieve its objective.

Lawful seas, safe seas

To provide a short answer to the question posed – is UNCLOS fit for purpose? – one must accept that it falls short, especially with regard to maintenance of good order on the seas beyond territorial limits. We need lawful seas – let’s call it a mare legitimum – for the effective regulation of resource exploitation and for the protection of an environment vital for life on our planet.

But we also need safe seas on which people can go about their legitimate business without undue risk to themselves and their welfare. The people employed at sea deserve to be well treated, with their human rights respected. Importantly, those with criminal intent need to be at serious risk of penalty.

At the moment, UNCLOS is not delivering these requirements. We know, for example, that slave labour is used in fishing fleets engaged in illegal, unreported and unregulated fishing, operating with impunity on a global scale. Nobody is preventing it or bringing those responsible to justice. While many will argue that the current constitution for the oceans is working reasonably well, in this fundamentally important sense it is certainly failing to deliver. It is not fit for purpose.

Management of our common heritage

We are failing to ensure that our ‘common heritage’ is being properly and responsibly managed and, unless we are directly affected ourselves, we are ignoring the welfare and safety of people at sea. A serious debate about how ‘lawful seas’ can be developed and maintained is now an imperative. And any new initiative must look well beyond the process of negotiating law, to resolve the practical issues of compliance and enforcement.

What is the solution? Let’s go for the UN taking charge, deploying an international maritime police force and prosecuting offenders in a court of justice for the oceans. Simple really – except that it is far from that. The level of cooperation and agreement such a solution would require is something the international political system is utterly incapable of delivering. States act in their own interests. They also tend to be driven by short-termism. Major maritime interests will not wish to lose the high seas freedoms they currently enjoy

I propose no answers here. That is not a ‘cop-out’. It is recognition of political reality. There is little point in proposing ideal solutions when they go against stark realities. Getting all the vested interests to agree on a new and effective arrangement for the seas beyond territorial limits is not looking likely any time soon. If it is to be achieved, the very least we must do is acknowledge the scale and complexity of the problem. And we must accept that UNCLOS has shortcomings inherent within it which many of those who negotiated it four decades ago were blissfully unaware of. One hopes that those negotiating the new convention for the high seas will take note.

Steven Haines is Professor of Public International Law at the University of Greenwich