The 40th anniversary of the Convention on the Law of the Sea presents new challenges for maritime management and marine environmental protection
10 December 2022 marked forty years since the United Nations Convention on the Law of the Sea (UNCLOS), which culminated years of negotiations within the United Nations, was opened for signature. With rapidly changing geopolitical conditions, the development of technologies enabling the extraction of minerals from the seabed, the climate crisis, and the disappearance of biodiversity, the convention must meet the demands of the next decades of the 21st century.
Constitution of the oceans
The Convention on the Law of the Sea entered into force on 16 November 1994, becoming a pillar of international legal regulation of human activities in marine areas. Sometimes it is referred to as the “constitution of the oceans,” since it is a common, universal piece of legislation and a guarantee of international order in maritime areas, as well as a guarantee of sustainable protection of the marine environment.
The convention not only codifies previously recognised norms shaped by international custom, but also takes account of and flexibly regulates new uses of the seas. It advocates a libertarian concept of the seas following the views of Hugo Grotius, who declared: “No nation or private individual can claim ownership of the sea … as neither nature nor consideration of public benefit permits its appropriation” (The Freedom of the Seas, 1609).
Convention vs. economics and politics in the third decade of the 21st century
Several centuries have passed since Grotius formulated this view, and today the “freedom of the seas” can be understood in various ways. This is influenced not only by the interests of individual coastal states, but also by the need to protect the environment. The juxtaposition of the spirit of the concept of freedom with increasingly widespread restrictions to protect vulnerable marine ecosystems required a new approach to codifying the law of the sea.
Indeed, the dispute between exclusive and inclusive perceptions of the space of the seas and oceans is becoming increasingly apparent. The first is focused on protecting the interests of individual states, without taking into account the interests of other entities, and at the same time protecting the environment as a common good. The latter gives priority to the interests and needs of the international community. The convention tries to strike a balance between the two. Although more than four decades have passed since it was adopted, it does so in a mature manner and, with some exceptions, is suited to today’s challenges, which include the rapidly changing international situation, construction of energy infrastructure (including offshore wind farms) and telecommunications infrastructure in maritime areas, intensification of the exploitation of marine life, and the development of technologies enabling the extraction of minerals from the ocean bed. Ongoing international disputes over maritime areas show the scale of the diversity and overlap of conflicting geopolitical, economic and natural interests.
A prime example is the ruling in 2016 by the Permanent Court of Arbitration in Philippines v China (PCA Case No. 2013-19), regarding the globally sensitive South China Sea. In that case, the court ruled on the role of certain historical rights to maritime areas. It explained the legal status of natural marine formations emerging from the water at low-tide elevations. It also assessed the international legality of actions taken by China which the Philippines claimed violated the convention.
The court confirmed that the rights to individual maritime areas are comprehensively regulated in the Convention on the Law of the Sea, and claims based on “historical rights” cannot exceed the scope of rights under the convention.
One of the elements of the ruling was the definition of an “island.” According to the convention, the territorial sea, contiguous zone, exclusive economic zone and continental shelf are defined around islands. However, not all natural formations emerging from sea waters are islands. Rocks unsuitable for human habitat or independent economic activity have neither an exclusive economic zone nor a continental shelf. Other formations revealed at low tide do not create entitlements to the territorial sea, exclusive economic zone or shelf. China’s taking of certain actions violated the Philippines’ sovereign rights in its exclusive economic zone, designated under the convention. Additionally, intensive efforts aiming to alter and expand natural formations in the South China Sea have resulted in serious damage to the coral reef environment and violated the convention’s protection of the marine environment.
The convention provides a solid foundation for safe development of economic activities in marine areas. Without it, the risks associated with undertaking activities on the sea would be too great. Imagine if rapid development of offshore wind energy were not based on convention principles. Offshore wind farms are often located outside a state’s maritime territory. Without the legal solutions of the convention, their functioning would be based on particularly shaky customary law and to some extent on a complete lack of any state law and jurisdiction. It is not hard to imagine what a source of conflict and business uncertainty that could be.
Priority protection of the marine environment
Marine pollution is a global problem transcending the legal orders of individual states, and protecting against it is one of the most important challenges of the 21st century. The oceans are a source of food, employment and economic activity, as well as a source of recreation, the world’s largest reservoir of genetic resources, and diverse ecosystems.
Therefore, in the convention, environmental regulation is relatively extensive. The provisions devoted to the marine environment are located not only in the lengthy Part XII, but also in other places of the convention. These regulations are vested with a kind of privilege and superiority.
Designation of the convention as the “constitution of the oceans” does not arise only from certain overriding principles and systemic assumptions, but is manifest in the formulation of its specific provisions. Some convention regulations, such as those introducing the concept of the common heritage of humanity of the seabed area beyond the jurisdiction of states, are essentially unmodifiable. In accordance with Art. 311(6) of the convention, its parties agreed that no amendments would be made to this basic principle. On the other hand, according to Art. 311(3), states may enter into certain agreements modifying or suspending the application of the convention, but this may only happen in relations between them, and these agreements may not relate to provisions derogation from which is incompatible with effective realisation of the object and purpose of the convention, as well as with application of the fundamental principles contained in the convention. Due to these provisions, the Convention on the Law of the Sea is in practice superior to other international standards on the law of the sea.
This carries over to environmental considerations under the convention. As noted in the preamble, one of the rationales behind the need to establish the convention is not only to facilitate international communication, to foster peaceful use of the oceans, but also to make fair and efficient use of their resources, including conservation of living resources and study, protection and preservation of the marine environment. Therefore, environmental protection is one of the pillars on which the convention system of the law of the sea is based. This approach is embodied in various solutions contained in the convention. For example, the aforementioned possibility of concluding agreements restricting the application of convention solutions is limited by Art. 237 of the convention. Under the conflict-of-laws rules there, the provisions of Part XII of the convention are without prejudice to those obligations arising from subsequent agreements “in furtherance of the general principles” of the convention. In turn, this means that states do not have full freedom to enter into agreements modifying the principles set forth in the convention, and in particular cannot exclude or reframe environmental obligations. Any specific agreements permitted under the convention should be implemented in a manner consistent with its general principles and objectives.
Convention and climate change
The convention does not contain provisions explicitly addressing the effects of climate change, and protection of the marine environment is perceived largely from the perspective of preventing marine pollution.
How states’ obligations under the convention should be understood in the context of the climate crisis may soon be clarified by the International Tribunal for the Law of the Sea. Indeed, on 12 February 2022, an application was filed by the Commission of Small Island States on Climate Change and International Law requesting issuance of an advisory opinion on the specific obligations of states-parties to the convention in relation to climate change.
The commission’s proposal asks for answers to questions on specific obligations of states involving:
- Prevention, reduction and control of pollution of the marine environment due to harmful effects that result or may result from climate change, including ocean warming, sea level rise, and ocean acidification, which are caused by anthropogenic emissions of greenhouse gases into the atmosphere
- Protection and preservation of the marine environment in relation to the impacts of climate change, including ocean warming and sea level rise, as well as the impact of oceans on the environment.
The Small Island States are a large group of small states located primarily in the Pacific Ocean and the Caribbean Sea. Climate change, and in particular rising sea levels, pose an existential threat to these countries, and as a result of these processes they could find themselves under the surface of rising seas and cease to exist. These states have recognised that while their impact on the climate crisis due to greenhouse gas emissions is essentially negligible, they bear a disproportionate cost of negative climate change, which they often refer to as “fundamental injustice.” Antigua and Barbuda (in the Caribbean Sea) and Tuvalu (in the Pacific Ocean) signed an agreement forming the Commission of Small Island States on 31 October 2021. Instruments of accession were also submitted by the Caribbean state of Saint Lucia and the Pacific states of Palau, Niue, and Vanuatu.
The convention and deep-sea mining
Another pressing challenge is deep-sea mining. Before, the discussion mainly concerned exploration and identification of deposits. Now we are entering the stage of commercial mining of raw materials comprising primarily oceanic polymetallic concretions, cobalt-bearing intrusions, and massive sulfides, which are a source of metals essential for industrial development. The approaching stage of commercial mining has raised concerns about possible environmental damage. Although the introduced procedures require an assessment of the impact of such activities on the marine environment in a given area, there are widespread claims that such an assessment will not be reliable. Indeed, at present the deep-sea environment is among the least studied areas of the planet, and until sufficient scientific knowledge is obtained to identify the risks and rule out environmental damage, this type of activity should not be undertaken. This calls for a temporary moratorium on resource extraction in such areas.
A concern was raised last year by the application of Nauru, an island state in the western Pacific, submitted to the International Seabed Authority, announcing that a sponsored entity (which the state has guaranteed) intends to start mining deposits. This application triggered the running of the deadline set by the convention by which the regulations and procedures governing the conduct of exploitation—the Mining Code—should be developed. If these provisions have not been implemented by that time, the exploitation plan should be approved provisionally based on the general provisions of the convention and the rules, provisions and procedures provisionally adopted. However, work on the Mining Code is still ongoing. It is pointed out that if the Mining Code is not adopted, the marine environment will be further endangered, as exploitation will take place under general mechanisms that may not provide adequate protection for the marine environment.
New solutions enriching the convention
Within the United Nations, work is underway to develop a new international agreement to ensure the sustainable use of marine resources in areas beyond the jurisdiction of states, i.e. within the high seas, an area that accounts for about 60% of the world’s oceans. The development of new technologies, an increasingly expansive maritime economy and interest in exploiting the high seas mean that the adoption of legal instruments aimed at protecting natural resources is essential. Meanwhile, the convention pays insufficient attention to this issue.
The agreement now being negotiated will include provisions regarding the conservation and sustainable use of marine biodiversity of areas beyond the jurisdiction of states, such as marine genetic resources, marine protected areas, environmental impact assessment, and technology transfers. The new convention is to be based on the principle of benefit-sharing resulting from resource exploitation.
The formal impetus for starting work on the new convention came from the findings of the United Nations Conference on Sustainable Development (Rio +20), held in Rio de Janeiro in 2012. In the final document, “Future We Want,” the signatories argued for the need for conservation and sustainable use of marine resources in areas beyond the jurisdiction of states. Also, the parties to the agreement committed themselves to take steps to develop a binding instrument of international law under the framework of the United Nations Convention on the Law of the Sea.
And in recent months, work has begun on the Plastics Treaty, a global agreement to regulate the full life cycle of plastics from the moment they are manufactured through the issue of marine pollution.
The next forty years
The 40th birthday of the Convention on the Law of the Sea is not an occasion for celebration. Currently, the scale of the challenges for the maritime economy is very difficult to estimate. It is good that the convention provides a solid foundation on the basis of which new regulations addressing the specific challenges of the 21st century can be framed. We will write about these challenges in future articles.
Dr Dominik Wałkowski, adwokat, Environment practice, Wardyński & Partners