A report prepared by the Public International Law Advisory Group for the International Law Gazette.
The 27th meeting of the States Parties to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) was held at UN Headquarters in New York from 12 to 15 June 2017, under the presidency of Ambassador Helga Hauksdóttir, who currently serves as Director General for Legal and Executive Affairs at the Ministry for Foreign Affairs of Iceland. The meeting was attended by representatives of States as well as of institutions established under the Convention, i.e. the International Seabed Authority (ISA), the Commission on the Limits of the Continental Shelf (CLCS) and the International Tribunal for the Law of the Sea (ITLOS).
The Under-Secretary-General for Legal Affairs and United Nations Legal Counsel Mr. Miguel de Serpa Soares highlighted in his statement the continued relevance of the Convention and its goals: the peaceful use of the oceans; the equitable and efficient utilization of their resources; the conservation of their living resources; and the study, protection and preservation of the marine environment. He referred to the call for action entitled “Our Ocean, our future”, adopted by the United Nations Conference to Support the Implementation of Sustainable Development Goal 14: Conserve and sustainably use the oceans, seas and marine resources for sustainable development, which was held from 5 to 9 June 2017. He stressed that during that conference Member States affirmed the need to enhance the conservation and sustainable use of the oceans and their resources by implementing international law as reflected in the Convention, which provides the legal framework for the conservation and sustainable use of the oceans and their resources. Mr. de Serpa Soares also emphasized the universal and unified character of the Convention, noting that “more than two decades after the entry into force of the Convention, the goal of universal participation continues to become closer, as the number of parties currently stands at 168, including the European Union”. He welcomed Azerbaijan as the newest State Party having accessed to the Convention.
International Tribunal for the Law of the Sea
The meeting considered the annual reports from the institutions established under the Convention. The President of the ITLOS, H.E. Judge Vladimir Golitsyn, thus introduced the annual report for 2016 (SPLOS/304) and provided an overview of the activities of the Tribunal. He referred inter alia to the Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), noting that the special chamber established to adjudicate upon the dispute was deliberating and was expected to deliver its judgment by the end of September 2017. He also gave some information on capacity-building and training activities undertaken by the Tribunal in 2016 and 2017, which included a programme on dispute settlement under the Convention, the internship programme and the annual summer academy organized by the International Foundation for the Law of the Sea (IFLOS), as well as the most recent regional workshop on the settlement of disputes relating to the law of the sea, held in Costa Rica on 5 and 6 June 2017. The President of ITLOS finally referred to the development of an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. On the assumption that such an agreement would incorporate a dispute-settlement mechanism based on the provisions of part XV of the Convention, he expressed the view that such a mechanism should include the possibility of requesting advisory opinions from the Tribunal on matters arising from the new agreement.
A number of delegations commended the contribution of ITLOS on the occasion of its 20th anniversary. For example, the European Union and its Member States noted in a common statement that “[u]ndeniably, the quantity, magnitude and intricacy of the issues dealt with under the Convention have left a deep imprint on the structural and legal architecture of the Tribunal”. “Over the years, the increasing and complex workload bestowed upon the Tribunal continues to confirm this”.
The International Seabed Authority
The Secretary-General of the ISA, Michael Lodge, provided information on the activities carried out by the Authority since the previous meeting. He briefed participants in advance on the 23rd session of the Authority, to be held in Kingston from 31 July to 18 August 2017, that would consider the final report of the Committee established under UNCLOS Article 154 to undertake the first general and systematic review of the manner in which the international regime of the Area established in UNCLOS had operated in practice. The final report the final report contained 19 recommendations, including for: a strategic plan to guide the work of the Authority; an enhanced role for the Assembly in setting policy; an increase in transparency across all the organs of the Authority; an enhanced internal functioning of the secretariat; and a revised pattern of meetings to promote broader participation and to reflect the fact that the work of the Authority had changed radically since 1994. Mr. Lodge also stressed that the priority for the Authority was the delivery of the regulations and standard contract terms on exploitation for mineral resources in the Area, which would enable contractors to move from exploration to exploitation. It was expected that a revised draft of those regulations would be circulated for another round of consultations with stakeholders in August 2017. A delegation highlighted the need to ensure that both the content and the terminology used in the regulations were consistent with international law, including the Convention. It was deemed regrettable that only eight Governments had submitted comments to the stakeholder consultations in connection with the first working draft of the regulations and standard contract terms, and greater participation was encouraged.
Commission on the Limits of the Continental Shelf
The Chair of the CLCS, Lawrence Folajimi Awosika, provided information on the activities carried out by the Commission since the 26th meeting of States Parties to UNCLOS, including on the consideration of submissions and approval of recommendations by the Commission, the workload of the Commission and the conditions of service of its members. The Commission was encouraged by certain participants to consider further adjustments to its working methods to proceed more quickly through the backlog of submissions in a timely manner. Several delegations also expressed concern over the number and complexity of the submissions still to be reviewed and the delays in the issuance of recommendations, while acknowledging that the pace of consideration of submissions by the Commission had been hampered by factors beyond its control. A view was expressed that States parties should consider mechanisms to reduce the circumstances that slowed down the work of the Commission and that could be addressed by the States themselves. It was also suggested that that the Commission should work full-time throughout the entire year or, at least, for six months each year. Other delegations cautioned that speedy consideration should be balanced by the need to provide adequate time to examine and consider carefully the data and information submitted. A delegation stressed the need for members of the Commission to conduct their duties on the basis of objective scientific and technical considerations. A number of delegations drew attention to the considerable resources that submitting States had invested in the preparation of their submissions to the Commission and stressed the need for the timely consideration of submissions, in view of the challenges, especially for developing States, with respect to the retention of technical teams, expertise and current software up to and during the consideration of their submissions by the Commission. In view of new developments in the acquisition of scientific and technical data, one delegation encouraged collaboration among States. Another delegation emphasized the need for consistency and predictability in terms of data and the technical requirements of submissions. A view was expressed that the Commission should work with States in a collaborative manner to ensure that States, especially those with limited capacity, receive the support necessary to establish the limits of their continental shelves. Some delegations raised concerns about the seemingly indefinite deferment of certain submissions as a result of objections made by third States. It was suggested that the rules of procedure of the Commission should be amended to enable it to consider all submissions. Another delegation noted, however, that the decision by the Commission to defer consideration of a submission owing to the existence of disputes was consistent with its rules of procedure.
With respect to the consideration of the submissions made by their respective Governments or the recommendations issued by the Commission, some delegations commented on situations where the Commission had departed in a substantive way from the draft recommendations prepared by the respective subcommissions, and pointed out that amended recommendations had been approved by the Commission without transparency or explanations as to the scientific rationale behind such amendments, thus undermining the legitimacy of the Commission. Concern was expressed over the lack of opportunities for exchanges with the Commission as a whole when recommendations were being considered in plenary and, in that regard, the need for the Commission to consider submissions in a transparent, inclusive and consistent manner was highlighted. A view was expressed by some delegations that approval of recommendations without a vote was contrary to the rules of procedure of the Commission. It was suggested that the Commission should consider ways to address those concerns. Some delegations highlighted, with concern, the high costs associated with preparing new or revised submissions.
During the discussion of matters relating to the Commission, some delegations highlighted the need to enhance the technology and hardware available to the Commission, including secure data storage and geographic information system software. Some delegations expressed concern over reports of potential breaches of confidentiality rules, including the risk of cyberattacks, and emphasized the need to secure data and information relating to submissions and for any such breaches to be fully disclosed to the Meeting.
Reports on oceans and the law of the sea
The Meeting also considered the annual reports of the Secretary-General on oceans and the law of the sea (A/71/74/Add.1 and A/72/70), which had been submitted to the States parties pursuant to article 319 of the Convention. Delegations expressed their appreciation to the Secretary-General and the Division for Ocean Affairs and the Law of the Sea for the useful and comprehensive reports.
A number of delegations welcomed the progress made in the work of the Preparatory Committee established by the General Assembly in its resolution 69/292 entitled “Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction” at its first three sessions. They expressed support for the mandate of the Preparatory Committee to make, at its fourth session, substantive recommendations to the General Assembly on the elements of a draft text of an international legally binding instrument under the Convention. The critical governance gap in the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction was highlighted. A view was expressed that the principle of common but differentiated responsibilities and the principle of the common heritage of mankind, as well as the need for capacity-building, should be included in the negotiation process. A delegation questioned whether a new international instrument should take into account the distinction between fish used because of their genetic properties and fish used as a commodity and offered the view that all fish in the high seas should be governed by the principle of the common heritage of mankind. The importance of universal participation in any new international instrument was recalled.
The crucial role of fisheries in ensuring food security was stressed by several delegations, including through sustainable fishing practices and aquaculture. One delegation referred to the existing international legal framework provided by the Convention and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (United Nations Fish Stocks Agreement), as well as the Code of Conduct for Responsible Fisheries of the Food and Agriculture Organization of the United Nations (FAO), and called upon States to implement those instruments. Several delegations underlined the need to increase and reinforce global and regional cooperation for the management of fisheries. Some delegations provided information on their progress in becoming parties to the United Nations Fish Stocks Agreement and the FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, as well as regional fisheries management organizations.
Elections of members of ITLOS and the CLCS
States Parties to the Convention also had to conduct elections of seven members of the ITLOS and 21 members of the CLCS. The new members of the Tribunal, elected for a nine-year term of office, from 1 October 2017 to 30 September 2026, are: Boualem Bouguetaia (Algeria), Óscar Cabello Sarubbi (Paraguay), Neeru Chadha (India), José Luis Jesus (Cabo Verde), Kriangsak Kittichaisaree (Thailand), Roman A. Kolodkin (Russian Federation) and Liesbeth Lijnzaad (Netherlands).
Highlights of general discussions
It is of course impossible to give a full account of all discussions of this 27th session. We will thus only highlight here a few selected issues of discussion. Algeria on behalf of the African Group stressed the commitment of Africa towards oceans, and expressed the African Group’s satisfaction over the outcome of the UN Ocean Conference held the previous week, in particular the adoption of the Call for Action and the voluntary commitments, to which African States contributed largely. The African Group expressed concerns regarding phenomena such as “unsafe migration by sea”, illegal, unreported, and unregulated (IUU) fishing, and piracy. It praised the adoption of an African charter on maritime security and safety at the extraordinary summit of the African Union, held in Lomé (Togo) in October 2016, as a step towards “an African strategy for the protection of its seas and oceans”. The African Group also stressed the urgency to deal with the effects of climate change on oceans, given that “African ecosystems are already being affected by climate change, and future impacts are expected to be substantial”. It noted that “coastal and ocean systems are important for the economies and livelihoods of African States, and climate change will increase challenges from existing stressors, such as overexploitation of resources, habitat degradation, loss of biodiversity, salinization, pollution, and coastal erosion”. Climate change could also entail other impacts, such as sea level rise, flooding of river deltas or an increased migration toward coastal towns due to increased drought and desertification”. As regards capacity-building as an essential component of the global response to climate change, the African Group underscored that the need to support capacity-building in developing countries has to be implemented “in accordance with the Common but differentiated responsibilities principle”. The African Group attaches the greatest importance to the Kyoto Protocol (and the Doha amendment relating to the second commitment period under the Protocol) as a valuable part of the momentum for global climate action for the years leading up to 2020, stimulating both sustainable development and emission reductions. “While Africa is the continent less responsible for climate change, it has to pay the greatest tribute if there will be no significant reduction of greenhouse gas emissions. Africa and its people can only face this situation if they receive adequate assistance to help them adapt to climate change. The African Group was expecting to see reflected in the report a reference to vulnerabilities and needs specific to the African geographical context, as enshrined in the UNFCCC and the omnibus resolution on Oceans and the Law of the Sea. It is worth indicating that the African Package for Climate-Resilient Ocean Economies, referred to in the Secretary-General report among other capacity-building partnerships, is a response to the particular vulnerabilities of coastal African States.
Nigeria stressed that IUU fishing is a “global problem that threatens ocean ecosystems and sustainable fisheries. IUU fishing violates conservation and management measures, such as quotas or by catch limits, established under international agreements. By adversely impacting fisheries, marine ecosystems, food security and coastal communities around the world, IUU fishing undermines domestic and international conservation and management efforts. The large number of developing states that depend on fisheries for food security and export income are particularly vulnerable. To tackle the issue of illegal fishing, Nigeria believes that States should deprive IUU fishers economic incentives, monitor and control fishing vessels, build capacity for enforcement and ensure good governance”. Nigeria also echoed the African Group in stressing the importance of the Advisory Opinion rendered by ITLOS on 2 April 2015 on the request submitted by the Sub-Regional Fisheries Commission, a regional fisheries organization of seven West African States. The Advisory Opinion, it was noted, “is in the right direction by strengthening the concept of ‘due diligence’ obligation in the UNCLOS context and their consideration of the issue of responsibility and the potential liabilities of flag States and their vessels operating in EEZ”.
Some delegations expressed their views with regard to specific regions. With regard to the South China Sea region, one delegation called upon all relevant parties to refrain from actions that might further complicate the geopolitical situation and escalate tension, to implement the Declaration on the Conduct of Parties in the South China Sea and to conclude a legally binding code of conduct. That delegation recalled, in that context, the importance of the principles of international law, such as freedom of navigation and overflight, as well as the obligation to settle disputes peacefully. Another delegation stressed the importance of the principles contained in the Convention in facilitating the establishment of a reasonable and fair maritime order and the need to respect the spirit and intent of those provisions, as well as the responsibilities and roles of the three institutions created by the Convention in maintaining order and promoting and protecting resources.
One delegation noted the importance of the Convention for States under occupation that were striving for self-determination and the right to permanent sovereignty over their resources, and it observed that its people, including fishermen, continued to face grave and continuous violations of the rights enshrined in the Convention. That delegation emphasized that its Government intended to take steps, in accordance with the Convention, to establish access to and control over its maritime zones, and it appealed to all States, entities and individuals to respect its maritime boundaries. An observer delegation stressed that the State of Palestine did not have legal standing to claim maritime boundaries under the Convention and indicated that negotiation of those borders was being conducted bilaterally. Some delegations, including observer delegations, were of the view that the State of Palestine did not meet the requirements of statehood and, therefore, could not accede to the Convention or become a member of the Credentials Committee.
Various side events were organized during the 27th meeting of States Parties, including an important event on “Choice of procedure under article 287 of the United Nations Convention on the Law of the Sea”, organized by the Division for Ocean Affairs and the Law of the Sea, UN Office of Legal Affairs. The event was moderated by Mr. Miguel de Serpa Soares, and featured presentations on various aspects of the mechanisms for the settlement of disputes concerning the interpretation or application of UNCLOS, delivered by H.E. Judge Ronny Abraham, President of the ICJ, Mr. Philippe Gautier, Registrar of the ITLOS, and Mr. Dirk Pulkowski, Senior Legal Counsel at the Permanent Court of Arbitration (PCA). Mr. Santiago Villalpando, Chief of the Treaty Section, UN Office of Legal Affairs, provided information on the role of the Secretary-General of the UN as depositary of multilateral treaties in relation to declarations under article 287 of UNCLOS. The purpose of the side event was to assist in the implementation of paragraph 58 of resolution 71/257 on “Oceans and the law of the sea”, in which the General Assembly encouraged States Parties to the Convention that have not yet done so to consider making a written declaration, choosing from the means set out in article 287 of the Convention for the settlement of disputes concerning the interpretation or application of the Convention and the Part XI Agreement.