Introduction
The negotiation and ratification of the United Nations Convention on the Law of the Sea (UNCLOS) 1982 was a considerable achievement. It standardised states’ claims to maritime zones and the resources within them and provided states with mechanisms for settling disputes.
UNCLOS is not perfect, however, and new evidence suggests that if UNCLOS is not supplemented, nor its provisions further developed, it will no longer be fit for purpose in the 21st century. The provisions of UNCLOS are not always complied with in practice, despite its adoption by most states. An overarching challenge is that of enforcement and the extensive use of ‘flags of convenience’, which has significant implications for maritime security and the protection of human rights at sea. There are also gaps in UNCLOS because more contemporary issues such as climate change and rising seas levels were not well understood, while new technologies such as maritime autonomous vehicles were only developed after UNCLOS was drafted.
The House of Lords’ International Relations and Defence Committee initiated an inquiry to determine whether UNCLOS remains fit for purpose forty years after its agreement. The ‘framework’ nature of the convention allows for the development of more detailed regulation and guidance to be delegated to other international bodies such as the International Maritime Organization. This means that UNCLOS has been considered a ‘living treaty’, which can change to reflect modern circumstances. This is now being tested by new concerns and new uses of the sea. CTPSR’s maritime security team responded to the inquiry and their submitted evidence informed relevant sections of the report which was published on 1st March 2022, titled ‘UNCLOS: the law of the sea in the 21st century’.
What our research found
Our research found that international law operates alongside domestic law, and it is important to recognise that the two are not always aligned. This is evident in the context of port security, where requirements associated with the International Ship and Port Facility Security Code are implemented and enforced differently depending on the location of the port. These requirements also sit alongside other policy frameworks, such as those governing border control, which can further complicate consistency in application.
The research highlights an urgent need to update the existing convention, as many contemporary maritime security challenges are either absent or insufficiently addressed. Issues such as cyber threats and human trafficking are not explicitly referred to, while others, including piracy, require further refinement to reflect their modern manifestations.
The widespread use of privately contracted armed personnel on board vessels, particularly those transiting piracy high-risk areas, further complicates the enforcement of the convention. These personnel are private, non-state actors, yet there is no provision outlining their responsibilities, jurisdiction, authority, or regulation within the existing legal framework. This absence creates significant legal and practical challenges for maritime governance.
Climate change also presents profound implications for maritime law. Sea-level rise will alter the geography and coastlines of coastal states, affecting the delimitation of maritime zones. Islands that currently extend territorial waters and Exclusive Economic Zones may, in the long term, become fully submerged, leading to a contraction and redefinition of sovereign territory and maritime entitlements.
From a human rights perspective, the research emphasises the need to strengthen relevant provisions within the convention. In particular, Article 99, which prohibits the transport of slaves, should be updated to address modern slavery and human trafficking at sea. The current reference to the “slave trade” does not adequately reflect contemporary understandings of exploitation, including forced labour and trafficking, especially within the fishing industry. Transhipment vessels are frequently used by illegal fishing operations to move trafficked individuals to and from fishing vessels. Updating this provision could provide the international community with an additional enforcement tool, particularly in situations where flag states are unable or unwilling to prevent or punish such practices, and could allow authorities to board and inspect vessels suspected of involvement in human trafficking.
Despite providing a codified legal definition of maritime piracy and calling on all states to cooperate in its repression, the convention has, in practice, weakened counter-piracy efforts rather than strengthened them. Persistent ambiguities remain concerning jurisdiction, the doctrine of hot pursuit, the “private ends” requirement, the two-vessel criterion, and the absence of a clear legal obligation on states to suppress piracy within their territorial waters.
Finally, the emergence of autonomous vessels presents new legal challenges that are not currently addressed. Vessels that are remotely hacked and stolen without physical boarding would not meet the existing legal definition of piracy. As maritime technology continues to advance, the convention must adapt accordingly by recognising the vulnerabilities posed by cyber threats to autonomous navigation systems and proactively addressing this emerging legal gap.
