UNCLOS Implementing Agreement

The United Nations Convention on the Law of the Sea (UNCLOS) provides the fundamental legal framework for protecting the oceans, and under the authority of UNCLOS the shipping industry is comprehensively regulated by IMO. But the regulation of other ocean activities, especially on the High Seas, is not so well developed. 

In 2016, the United Nations, in New York, started some high level negotiations on a new UNCLOS implementing agreement concerning conservation of Biodiversity in areas Beyond National Jurisdiction (BBNJ) – in other words the High Seas.

While shipping is not the main focus of this UN initiative, which is really aimed at strengthening the regulation of deep sea fishing and new activities such as seabed mining, this work is likely to lead to the establishment of Marine Protected Areas on the High Seas.

In order to ensure that sectors such as fishing cannot argue for exclusion on the grounds that there are already other mechanisms in place to regulate them, the UN is keen for the agreement to be as comprehensive as possible in scope. This means that it will probably also apply to shipping, even though there is currently no suggestion that shipping is insufficiently regulated by IMO.

Potentially therefore, there is a risk that this UN work could adversely impact on shipping, interfering with principles such as freedom of navigation, or otherwise cut across the work of IMO. It could also potentially upset the current balance that exists between the rights and obligations of flag states, coastal states and port states. 

Alongside IMO, ICS has therefore attended the first two sessions of the UN Preparatory Committee that have taken place in New York. At the second meeting, at the end of August 2016, ICS was invited to join IMO maritime administrations at an IMO side event, to help explain to the UN negotiators how shipping is comprehensively regulated by IMO. Most of the national UN negotiators are drawn from foreign affairs, environment and ocean ministries which are not necessarily closely engaged in the work of IMO. 

The negotiations are still at an early stage and the issues are complex because, in addition to IMO, the ocean is already regulated by a large number of different UN and regional agencies. But for the moment it appears that most of the key governments are broadly aware of the importance of ensuring that any new measures that could affect shipping should not be taken forward without the full involvement of IMO. None of the key players seem to have serious concerns about shipping or question the ability of IMO to deal with MPAs should it be decided to apply them to shipping on the High Seas. 

It currently seems that there is little appetite among governments to establish a new UN Oceans agency. However, it is possible that ocean issues – such as the designation of High Seas MPAs – could be determined by regular Conferences of Parties to the new agreement, administered by the UN Division of Ocean Affairs. However, it is hoped that the detail and appropriateness of any measures that might apply in such MPAs – e.g. special navigational measures to avoid harm to rare species of whales – would still be determined by the relevant specialist agency, in this case IMO. It is also hoped that such decisions would have to be based on serious science, e.g. with input from bodies such as GESAMP (the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection). 

The broader interests of ocean industries continue to be represented at these UN meetings by the World Ocean Council (WOC) of which ICS is a founder member. Meanwhile, working closely with IMO, ICS will continue to follow the work of the next UN Preparatory Committee meetings during 2017, in advance of a Diplomatic Conference which is scheduled to adopt a final text, possibly as early as 2018.


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