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).
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.
My Lords, UNCLOS: the Law of the Sea in the 21st Century is good, as far as it goes. But 40 years on, there are gaps and enforcement is extremely patchy. Human rights abuses at sea, biodiversity law and environmental degradation are inadequately addressed. I would like to draw particular attention to chapter 4 of the excellent report, on the impacts of climate change, including the implications of rising sea levels on low-lying states and the displacement of people leading to increases in refugees and migration. I also draw particular attention to chapter 5, on human rights and labour protection at sea.
International human rights laws apply to those at sea as well as those on land, but UNCLOS has little to say about human rights. The barriers to application at sea need to be addressed. It is vital to tackle human trafficking and modern slavery, enforced labour and excessive working conditions—which we know are happening as we sit here today—and to avoid flags of convenience providing many loopholes.
Another vital issue is migration at sea by vulnerable groups—including asylum seekers and refugees, who are often in insecure vessels—and rendering assistance to those in distress at sea. This must not be sidelined by immigration and other policies. These are human beings who we must take care of and who are not there for their own purposes. They are there because the situation has made this happen; no one would want to put their children and themselves in these difficulties. I question whether provisions in the Nationality and Borders Act are compliant with our duties in UNCLOS, in particular our international responsibilities under Article 98. Those suffering human rights abuses at sea must have sufficient access to timely and effective justice remedies. In particular, contracted armed security personnel must be regulated. The regulations around this are extremely weak; we really must look at that, not only in this country but in other countries, and join forces. Piecemeal attempts at solutions are not good enough. The UK Government must respond robustly to the report and do much better on human rights violations at sea reports.
My Lords, I should declare a non-financial interest as a patron of the British charity, Human Rights at Sea.
When I first came into the Grand Committee, I wanted to make sure that I had the Government’s most up-to-date response. I have to tell the Minister that I was hugely disappointed by it, until I read the title, which was Technology Rules? The Advent of New Technologies in the Justice System—I had picked up the wrong one. I now have the most recent response, I hope, and will refer to it later.
I was delighted that the committee went into UNCLOS. It is its 40th anniversary and, to me, it is something that all the signatories can be proud of. I see it as the law of 70% of the planet’s surface—some of the most important, and indeed some of the most unknown and unresearched, parts of the planet. It has its weaknesses, gaps and challenges, and I will come to each of those.
It is also under threat; this is not an area I will talk about but, in terms of the South China Sea, there is a direct challenge to a ruling under UNCLOS. The Philippines brought that case but has backed off; China has totally rejected it and did not see that jurisdiction as being valid. That is a part of the autocratic world trying to undo the international conventions that have kept the planet at peace and sane over the last 50 years and more. So it is under threat.
One of the main, negative conclusions that the committee came to was that the last thing we should do is renegotiate UNCLOS. We should find ways of improving it and making it the living treaty that was described by many of our witnesses, but we should not undo it. It is a keystone of the rule of law over our oceans.
I follow on from the thoughts of the noble Baroness, Lady Anelay, our chair, on flags of convenience. To me, this is the one area where, to use the wrong analogy, we drive a horse and coaches through the way that UNCLOS is supposed to work. The table shows exactly that Panama has gross tonnage of vessels of about a quarter of a million under its flag, the US has only 10 million, and the UK 8.7 million—in 22nd position. Clearly, everything is out of kilter. We are trying to get a balance: historically, the freedom of the high seas has been very important and something which we would not want to move on. The trouble is that it is abused and there is widespread immunity on the oceans through flags of convenience.
My Lords, it is always a pleasure to follow the erudite speeches of the noble Lord, Lord Teverson. Our chairman, my noble friend Lady Anelay, and her team chose UNCLOS—an important but, dare I say it, relatively unknown subject regarding the law of the sea. I am most grateful to have served on her committee for nearly three years and for our having the opportunity to debate the UNCLOS report, especially leading up to the conclusion of the 40th anniversary conference on 10 December.
“The seas covering the globe, and particularly those around our coasts, have always been a fascination to many, since to a great extent they hold the key to the state of our economy, our physical health and our safety, to mention but a few of the areas affected”.—[Official Report, 19/5/1976; col. 1431.]
I quote this from the maiden speech of Earl Strathmore and Kinghorne, during a former debate on the subject, here in the Lords, on 19 May 1976. I would like to highlight three security points emanating from our report that I believe could give cause for concern and to add to what some speakers have already mentioned. The three points I want to talk about are climate change, the South China Sea, including the Spratly Islands, and cable security.
First, on climate change, which has already been mentioned, witnesses identified the Arctic as a region where climate change may have serious and significant maritime security implications. Paragraph 113 of the report says:
“Climate change is likely to lead to additional maritime security challenges, particularly in the Arctic. We ask that in its response to this report the Government provides us with information about how it is monitoring security-related developments in the Arctic”.
Secondly, on the South China Sea, I shall not go into all the details, which have been well rehearsed. However, the challenges come in two main forms: long-standing claims, which are at odds with the principles of the treaty, and new claims by rising powers. These are both exemplified by China’s actions in the South China Sea. Evidence suggests it is highly unlikely that China will decide to change its policy of claiming exclusive jurisdiction over the majority of the South China Sea but that it will continue to reject the principles of freedom of navigation and freedom of innocent passage, as outlined by UNCLOS. China’s stance poses a challenge to international law. The UK Government should continue to work with their partners and allies to protect and preserve the principles of freedom of navigation, not only in the South China Sea but in every region where it is challenged. I urge the Government to keep an eye on this area to make certain there is no trouble regarding our navigation rights, which, as the Minister knows, are so vital.
My Lords, this report makes it clear that the United Nations Convention on the Law of the Sea, and crucially the instruments that fall within its overarching framework, have helped to bring a welcome degree of certainty to the governance of the world’s waters, which, of course, cover the larger portion of the planet’s surface. It also underscores the ongoing importance of the convention and outlines how it continues to be crucial in addressing a range of important and difficult new maritime issues.
However, at the moment, UNCLOS does not answer all questions, nor does it provide a resolution to all issues. The report highlights the current gaps and challenges that are likely to emerge in the years ahead. As a maritime nation that relies on predictable and equitable rules at sea, it is important that the UK continues to take a leading role in the maintenance and development of UNCLOS and its subsidiary instruments.
At the same time, we must recognise that, no matter what we do, there will be issues that UNCLOS will not—or will not be allowed to—resolve. This is not an excuse for slackening our efforts to strengthen maritime governance, but it is important to recognise the limits of what is likely to be achievable and to think about how we manage the consequent challenges to international order. That is what I will focus on today.
The principal difficulty characterises international law more generally: there is no global government, so international law is essentially what the most powerful members of the international community decide it should be. We should not, therefore, be surprised that UNCLOS relies on consensus. This of course limits its scope when there is disagreement among the major players in the system, although we should note that, where there is consensus, we tend to get a high degree of compliance. However, compliance can also be a significant challenge. Just as there is no global government, there is no global enforcement mechanism that can be brought to bear on those who contravene international agreements. China’s repudiation of the 2016 UNCLOS ruling in favour of the Philippines regarding activities in the South China Sea—already mentioned several times this afternoon—clearly demonstrates the limits of the system.
Last year, our committee decided to put together its considerable brain power and powers of persuasion to seek the wisdom either of experts on the law of the sea or of those who have had to navigate it, such as the noble and gallant Lord, Lord Stirrup, and address whether it was fit for the future. I realise that, to some, this might seem a rather niche topic, especially at a time of geopolitical turmoil—I myself had to google UNCLOS on my lap in the committee, hoping that the noble and gallant Lord did not notice––but it is precisely because so much is in flux that we must seek to protect core elements of the multinational system, the rock on which global peace rests.
During our witness sessions, I was once again struck by what a great privilege it is to work among colleagues in this House. I pay tribute to the secretariat of the committee, which is so dedicated and outstanding, and to the amazing tenure as chair of the noble Baroness, Lady Anelay, which is drawing to a close.
Today I shall focus my remarks on how the rapid changes and complexities of today’s world contrive to add pressure to, and potentially render pointless, even the most functional elements of our multinational rules-based system. UNCLOS was a fine piece of work when it was put together 40 years ago, with some 168 signatories, to forge some rules upon the unrulable—namely, the world’s oceans and seas. It was a considerable achievement, and still is. First and foremost, it was designed to produce boundaries between states and set out their rights to the waterways and resources around them, along with a dispute mechanism to argue these things out. The fact that there is not a mountain of disputes to date is a testimony to the treaty’s success.
However, in reality, out there on the high seas things look a bit less functional. We are told that the seas are lightly ruled by codes around flag states, but that practice has been weakened by the overuse of flags of convenience and a lack of enforcement in recent years. In other words, it is more of a free-for-all out there than it looks. What were once gaps in UNCLOS risk becoming gaping holes of lawlessness and potential human misery and exploitation, as well as creating security risks.
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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”.
My Lords, I too thank the noble Baroness, Lady Anelay, for her introduction to this debate and her excellent chairmanship of the committee. This has been a really interesting debate. I suspect that we all started by thinking, “What do we know about international maritime law?”, but when we think about it, we have all had experience of it. United Nations conventions are a crucial part of the international rule of law. As the noble and gallant Lord, Lord Stirrup, said, it relies on countries taking responsibilities seriously for that to work.
Given the UK’s maritime history and our special relationship with the International Maritime Organization—as the noble Lord, Lord Teverson, reminded us, it is just across the river—we should be ambitious about the role we can play in shaping the law of the sea to reflect our values. As the noble Baroness said in her introduction, we have had UNCLOS for four decades, which has provided a stable framework for the governance of global waters. However, there are clear shortcomings to its relevance and application today.
We face new challenges and threats. Recent events in the Black Sea have shown how vital it is that, in an increasingly uncertain world, our seas are underpinned by international law and co-operation, rather than conflict. We have seen how grain ships to Africa can end the threat of starvation. It is vital that we focus on those broader issues. I want to emphasise that it is right that the Government’s Maritime 2050 strategy from January 2019 committed to monitoring contraventions of UNCLOS and to
“deter acts of aggression and mitigate increasing nationalist agendas by supporting rules-based norms”.
However, that is easier said than done.
As we have heard in this debate, China, for example, has taken increasingly aggressive steps to bolster its claims to the South China Sea and interfere with established trading routes. It has refused to participate in UNCLOS arbitration. I am pleased that the United Kingdom Government remain committed to UNCLOS and the International Maritime Organization, but we need more than warm words; they must provide the necessary resourcing and capabilities.
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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.
I was delighted to hear that we are now going to sign the 1986 UN Convention on Conditions for Registration of Ships. This seems one of the areas in which the UK should be leading internationally. The original government response, as I remember it in the committee, was that there was not a lot of interest from other nations, so why do it? That raises the question that this must be unsatisfactory to the vast majority of nations—though perhaps not Panama, the Marshall Islands and Malta. But to the rest of us it is important, and something through which we should be trying to get an economic link between flag and vessel. Until we do that, there will be a rather big hole in jurisdiction and how this charter actually works.
Of course, the International Maritime Organization is within a mile of this building. Surely, just due to the fact that it is in that location, we should be able to provide extra leverage to make sure that other nations come alongside us, and we should show that leadership.
I would be interested to understand from the Minister how we can improve port state control and make sure that those measures are more effective, as well as territorial waters. I would not like to stop the right of innocent passage through territorial waters but there needs to be more national responsibility for who goes through those waters.
Human rights is the area that is very much missing, and I completely agree with the comments of the noble Baroness, Lady Goudie, on this. It is not just about human rights themselves but the fact that, where there are these abuses—and all enforcement is difficult at sea—it moves on to other abuses and other breaches of international law. Whether it be illegal fisheries, people trafficking or drug trafficking, all this will continue if we do not take a much stronger approach to the human rights side of UNCLOS and the way that we enforce and legislate with regard to the high seas.
Never mind all those examples, I thought we had a good example with the cruise ship in the Mediterranean, outside of territorial waters. There was an assault on a passenger by a member of the crew; the national was Spanish, and the Spanish courts were not able to do anything, and there was an Italian connection, but Italy was not able to do anything either. The flag state, Panama, was just not interested. There is no recourse, even for that type of person, let alone for those in enslavement on fishing vessels.
I will say just one last thing on human rights. As I said, one of my areas is as a patron of Human Rights at Sea, which is a British charity. It is pushing ahead here with a document called the Geneva Declaration on Human Rights at Sea. This has been taken up by New Zealand and other nations but has had indifference, to a degree, from the United Kingdom—though not entirely; we had a very positive meeting with one of the Transport Ministers under the Boris Johnson Administration, but nothing has happened there. Can the Minister look at this further, to see how we can help push that declaration to extend human rights under international law?
Lastly, I will talk briefly about seabed minerals. At COP 27, President Macron said, very abruptly, “We aren’t going to do sea mining—I’m going to try to stop it altogether.” Similar declarations have been made by New Zealand, Chile and one or two other countries, including Panama and Costa Rica. But the latest government response says—not unreasonably, in a way—that the UK is looking at
“the Regulatory framework of the ISA, with a view to adopting regulations in July 2023 in accordance with the ISA’s road map for their elaboration.”
After that, there are a lot of caveats about what we are pushing for as a nation within those negotiations.
My view is very clear on this. We already have enough minerals and despoliation on land. If we believe in natural capital, and particularly in circular economies, we should, not just as a nation but as an international community, make sure that we get those minerals through a circular economy and through the exploitation that we already have, not in new domains under the sea. Can the Minister say whether the United Kingdom will back those other nations in saying that, at the end of the day, enough is enough, and we have despoiled our terrestrial domain enough? Let us not let that happen to the seabed, as it inevitably would, whatever regulations we have as regards that future convention.
Thirdly, on subsea cable security, these cables are a critical element of the UK’s, and the world’s, communications infrastructure. The report says that
“witnesses added that there is also a ‘lack of information sharing on cable breaks’ which ‘poses a threat to the functioning and security of the global subsea cable system and global connectivity’”.
Although UNCLOS places obligations on states to allow for the laying and repairing of such cables, these are not always followed in practice. It is crucial that the laws are clear where responsibilities lie for the maintenance and protection of subsea cables. The international regulatory regime is unclear and this must change, considering their significance. The Government should work with partners and others to address this. The UK should work to improve domestic legislation for cables in the UK’s territorial waters, as well as working with partners to strengthen the international regulatory regime. I know HMG take all these matters very seriously—and so they should. We were told that these cables were well protected, but I keep reading disturbing reports.
People in all walks of life, not only those directly concerned, are now beginning to realise the importance that should be attached to the UN Convention on the Law of the Sea. This report is long and complex, covering in detail many different security points. I fear that it may not be widely read cover to cover, so I want to ensure that the Minister takes these three vital security points back to his department: the effects of climate change, the freedom of navigation in the South China Sea and the protection of undersea cables.
Today I will highlight two challenges where in future UNCLOS may find itself constrained or even neutered. The first concerns the crucial issue of resource exploitation. The report covers the difficulties in regulating the development of deep seabed mining and fisheries management, but these will be greatly exacerbated by another factor, which is also discussed in the report and has been mentioned this afternoon: climate change.
The availability of an ice-free northern sea route from the east to the west will dramatically increase the commercial viability of maritime exploitation of the Atlantic by powers such as China, and this will have serious implications for fisheries. China’s demand for fish far outstrips its current supplies. Once its trawlers can access the Atlantic, we are likely to face a huge assault on fish stocks in that region. When I say “trawlers”, I am not talking about the sort of vessels that we can see sailing in and out of Brixham harbour; these are ships that are at sea for six months at a time and operate on an industrial scale.
We are likely to see a similar assault on non-living seabed resources. Despite the recent declarations made at COP 27, to which the noble Lord, Lord Teverson, referred, I suspect that the availability of strategic minerals will be like a magnet to resource-hungry nations, and the scale of China’s requirements will drive it to exploit the seabed wherever it can. Indeed, its activities in this regard have more than once been referred to as ocean rape. The International Seabed Authority will no doubt do its utmost to regulate such exploitation, but we have seen with the South China Sea how the PRC reacts to rulings that run counter to what it regards as its national interests. While we should continue to support such international governance mechanisms, we should also prepare now for an ice-free, Arctic route and the challenges this will bring. We should discuss with partner nations how together we might respond to those challenges in cases where international agreements prove powerless.
The other problem I want to highlight, already referred to by the noble Baroness, Lady Rawlings, is the security of subsea cables. The committee’s report emphasises their importance. Around 95% to 97% of global communications depend on them, and around 25% of the UK’s electricity is delivered through such cables. UNCLOS contains important provisions for their laying, maintenance and repair, but there are no comprehensive rules protecting maritime cables.
The report highlights areas where the UK should work to improve the regulatory environment in this regard, which of course is important. Better domestic legislation and closer co-operation with the International Cable Protection Committee are necessary steps in this regard, but, as with resources, we must recognise the likely limits of international law.
Subsea cables are crucial to our security and prosperity, but at the same time they are vulnerable. While accidental anchoring, fishing and natural disasters are the main threats to those cables in normal times, they are also obvious targets for hostile military action or, in future, for terrorist attack. UNCLOS will be of no help in the face of such risks. We need to develop comprehensive plans for the defence of subsea cables, but we also need to recognise that no defence can ever be perfect. This underlines the importance of developing sufficient resilience to be able to cope with successful attacks on those crucial assets. But that, as they say, is a whole other story.
In essence, the committee’s report confirms that UNCLOS, along with its subsidiary instruments, has on the whole been a huge success story, and it goes on to argue persuasively that the UK should work to develop the convention’s usefulness in the face of future challenges. I say amen to that, but, as I have argued, we must also be aware of the limitations that are inherent in any aspect of international law, UNCLOS not least, and prepare our responses to the inevitable and serious challenges that will face us as a consequence.
Challenges that will quickly turn to threats if we do not address them now include climate change, new technologies, human rights, security of critical infrastructure and the protection of marine environments, to name just a few concerns. Some of those fall outside the existing UNCLOS, and you might say they were not the point of UNCLOS in the first place. However, they should be the point of it now. I shall pick up a few of them in turn.
The first is the impact of climate change, an immediate and devastating effect of which is rising sea levels that threaten to destabilise the intricate set of established entitlements for all but a few landlocked states. We are talking here about national boundaries, and in some cases nations’ very existence. Our world’s maps are being redrawn and the populations who once inhabited those areas may be forced to seek new homes, no doubt many taking to the sea to do so.
That poses many challenges, the first of which is around existing boundaries. Do we hold firm or reassess? In our report, we recommended that “baselines should remain”, which I believe must be correct, at least for now. But for how long is that achievable? That depends on how fast and how defining the changes in sea level become, and only nature has the answer to that.
What of those who are forced on to the sea in search of a new home? That takes me to my second area of concern: human rights at sea, or the lack of them. I shall start with those who labour at sea. We learned that, although they are covered by international human rights law, it is extremely difficult to apply in practice, creating a grey area that allows for exploitation. The problem is likely to worsen with the emergence of a global labour force at sea, mining the seabed or tending infrastructure, who may have little or no rights, living and working in a type of seabound modern slavery. We must address this now. Governments recognise, and therefore must be made to enforce, international human rights at sea before things worsen.
On the issue of migration, we know the challenges all too well as we face our own devastating small-boats crisis. Imagine a world where the high seas are full of people seeking refuge, vulnerable to trafficking and neglect and in mortal danger. Nation states struggling with security issues and domestic political pressures seem to have difficulty finding solutions to this issue. These are complex global issues which require multinational solutions and political will to resolve.
Lastly, I turn to a set of issues that loosely fit around security. In an age of increasingly limited resources and new technologies, the deep sea poses both opportunities and new challenges. We have talked of the deep seabed providing new resources, but that needs to be managed so we do not have a free-for-all. We have also talked about subsea cables, which are highly vulnerable to attack, as we saw just recently with Nord Stream.
There are national security issues, as others have mentioned, with navigation and rights of passage in relation to rising sea levels. We see that emerging in the Arctic, and we are aware of the very real issue in the South China Sea.
It is up to all of to protect our precious maritime environments, but under whose auspices is that to be achieved? I commend the Blue Belt Programme, which has been a great success, but we should be doing way more.
We have always prided ourselves on being a great maritime power with a strong global footprint. We must leverage that now as a global convener, to address the important issues around national security, human rights, asylum and nationhood as well as the sustainability of our oceans and seas. The challenges of a rapidly changing geopolitical landscape means that UNCLOS is likely to be irrelevant to the challenges that face us unless we act. We must bang heads together, literally, and think holistically to seek global solutions. We have found that, where there is political will to solve a problem, there is inevitably a way.
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?
Given the recent introduction of sanctions against Russia, the Minister will know just how vital the role of the IMO is in sanctions enforcement. That role has been recently extended and expanded. Can the Minister explain how the department is working with the IMO as part of its development of sanctions?
UNCLOS and the IMO have also played an important role in the fight against piracy, including in the Strait of Hormuz, Gulf of Guinea, and the Gulf of Aden. The Government’s integrated review—which I know is being reviewed—pledged to contribute to wider maritime security, including tackling the kind of piracy I have just referred to.
I suspect that if my noble friend Lord West was here, he would be focusing on our ability and capability to keep to the commitments we have made on maritime security. We contribute almost 2,000 civilian seafarers on the Royal Fleet Auxiliary. I hope the Minister can tell us what assessment the Government have made of whether we are making a sufficient and appropriate contribution.
My contribution this afternoon will focus on the issue of human rights and workers’ rights. I must declare an interest in that I spent my working life with the Transport and General Workers’ Union. It was one of the biggest affiliates of the International Transport Workers’ Federation which, certainly for the whole time I worked for the union, was focused on how to enforce international rules and obligations on shippers. Action was taken by members of the International Transport Workers’ Federation to try to stop ships leaving port which did not comply with the rules. In recent times, we have seen the scandal of P&O Ferries sacking 800 ferry workers to replace them with agency workers, which highlights some of the poor regulation in the shipping industry for workers. I have had direct representation from organisations representing seafarers. I noticed that Nautilus International is engaged; the RMT has also raised issues, as has the ITF.
As we have heard in this debate, unfortunately, “innocent passage” is too often relied on by rogue employers to employ cheap migrant labour, even on routes that do not pass through international waters. This includes Dover-Calais, which is 21 miles, as we all know, and others that call at UK ports. UNCLOS should never be misinterpreted as the reason to exploit seafarers’ terms and conditions of employment.
I welcome what the noble Baroness said about the Government’s commitment to reviewing the 1986 convention. I want to focus on the ILO’s Maritime Labour Convention as well. In their response to the committee’s recommendation in paragraph 214 of the report, the Government say that they share
“the concerns of the Committee regarding … forced labour and other labour exploitation abuses of those working at sea.”
They say that they believe that
“the Maritime Labour Convention, 2006 and the ILO Work in Fishing Convention, 2007 (No. 188) provide an effective framework to identify such abuses through port State control”,
and they talk about how the Maritime and Coastguard Agency inspections under these conventions ensure that relevant enforcement agencies can address these issues. ILO 188 does not exclude small vessels; indeed, it explicitly
“applies to all fishers and all fishing vessels engaged in commercial fishing operations.”
Some more detailed provisions are aimed at larger vessels, but the general provisions apply to all. We have had representation from those unions about the exclusion of fishers.
The Government say that
“Members may, after consultation, exclude ‘limited categories of fishers or fishing vessels’ from the Convention where ‘special problems of a substantial nature’ would be caused by application of the Convention.”
However, the Government’s response does not give us any assessment of how that operates and how extensive it is. I hope that the Minister can assure us about that this afternoon and give some details about how those exemptions may apply. I have certainly had representations saying that we need to do more to protect fishers—particularly workers on platforms, which we have not addressed in detail today.
I want to pick up the point about climate change. I welcome the focus on that issue in the report. We now have an established international consensus that domestic and international shipping must decarbonise. The Clydebank declaration at COP 26 commits the UK and 19 other countries to developing green shipping corridors on international routes. That was further developed at COP 27 with the announcement of the agreement between the UK, the USA, Norway and the Netherlands over the development of decarbonised shipping lines. I hope that the Minister can give us an assessment today of whether UNCLOS and the IMO can support the implementation of that agreement and make sure that it reaches the targets it sets itself.
I very much welcome the report. It highlights how valuable our select committees are in focusing on issues that we would not necessarily see debated in the Chamber but are vital when it comes to our future security with regard to both defence and security and the issue of climate change, along with our obligations under the SDGs, which we need to focus on even more. It is an excellent report and I look forward to hearing the Minister’s response.