International Development Committee:
UK Small Island Developing States Strategy

SIDS, sea-level rise and the preservation of maritime zones

1. As other submissions also point out, the ‘Ocean and Biodiversity’ area of focus in the UK SIDS Strategy aligns well with similar areas of focus identified by SIDS themselves.  For example, it closely mirrors the ‘Ocean and Natural Environment’ priority in the 2050 Strategy for the Blue Pacific Continent[3], the SIDS Accelerated Modalities of Action Pathway,[4] and a consistent thematic focus on oceans in successive communiques and declarations from the leaders of the Pacific Islands Forum (PIF) and Alliance of Small Island States (AOSIS).
2. However, the UK SIDS Strategy does not touch on a crucial legal dimension of international efforts in this field, which has been identified by SIDS as a key oceans priority.  This brief submission addresses that gap: why and how the UK, including through its ‘Ocean and Biodiversity’ focus in the UK SIDS Strategy, should support the legal preservation of established maritime zones notwithstanding sea-level rise.
3. Legal questions arise about the impact of sea-level rise on maritime zones because the international law of the sea establishes a special relationship between the land and maritime entitlements. As a result, sea-level rise impacts on coastlines raise the question of whether changes to characteristics of the land necessarily result in corresponding changes to the legal architecture they support, such as baselines and maritime zones.[5]
4. Many coastal States have expressed concern about the prospect of receding baselines, and shrinking or disappearing maritime zones, particularly because of the importance of maritime zones in maintaining the spatial organisation of States’ rights and duties in the ocean, many of which are essential for access and control over the ocean’s natural resources. Sea-level rise most particularly affects low-lying States (many of which are SIDS); accordingly, because of their ‘extensive use of low-lying features to generate maritime zones, and their economic reliance on the sea […] sea-level rise could therefore have significant consequences for statehood, national identify and sustainable development, and livelihoods’.[6] 
5. As explained in the UK International Relations and Defence Committee Report’s consideration of this issue,[7] there is a range of scholarly opinion as to the present status of the legal rules under the international law of the sea and how they might apply in sea-level rise scenarios.  However, against the backdrop of that uncertainty, in recent years many States have put forward the position that international law permits the preservation of validly established maritime zones notwithstanding sea-level rise.  In August 2021, PIF leaders issued the Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea-Level Rise.[8] The following month, a similar declaration was issued by AOSIS leaders.[9]
6. Noting the PIF Declaration, the UK International Relations and Defence Committee recommended in its Report that the UK should ‘take a formal position that baselines should remain fixed in their current position. This would ensure that no states, including the UK and its Overseas Territories, lose their current maritime entitlements’.[10]  The UK, in its Government Response[11] and elsewhere,[12] has to date taken a cautious approach.
7. Despite the broad alignment of the UK SIDS Strategy to SIDS’ own oceans priorities, a question remains as to the UK’s legal position on sea-level rise and maritime zones.  I suggest that UK support for the PIF and AOSIS declarations is crucial to the successful implementation of the UK SIDS Strategy’s ‘Ocean and biodiversity’ focus for the following reasons:

a)      The UK should support the preservation of maritime zones as an identified oceans priority for SIDS (including all Commonwealth SIDS): Of the 56 Commonwealth countries, 25 are SIDS. As shown in the Annex to this submission, each of those 25 Commonwealth SIDS is either a member of PIF or AOSIS (or both).  This means that all Commonwealth SIDS have taken the view that the international law of the sea should be interpreted in accordance with the importance of legal stability, security, certainty and predictability, to provide for the legal preservation of maritime zones.  The PIF and AOSIS Declarations should be recognised as a clear statement from the leadership of Commonwealth SIDS articulating the priority of this oceans issue. If the UK aims to support SIDS ‘to grow their maritime economies sustainably while adapting and mitigating climate change’, supporting the stability and security of the legal architecture underpinning those maritime economies should also be a key goal.

b)      The UK should join its voice to many others in the international community, to shape the direction of the international law of the sea as a matter of global oceans governance: The PIF and AOSIS declarations frame their positions in terms of ‘the interpretation and application of the [United Nations Convention on the Law of the Sea][13] in the context of sea-level rise and climate change’:[14] as well as being political declarations, the declarations also convey a legal view about the interpretation of UNCLOS rules. Of course, those rules have much broader significance beyond PIF and AOSIS members (who collectively represent 42 UNCLOS Parties) to having potential legal effect for all 169 UNCLOS Parties.  Beyond the PIF and AOSIS membership, certain States Parties (for example, Germany,[15] France,[16] Japan,[17] Greece,[18] Malaysia,[19] Indonesia,[20] Republic of Korea)[21] and non-Parties (for example, United States,[22] Liechtenstein)[23] have voiced support for the preservation of maritime zones.  No States have opposed the legal position advanced in the PIF and AOSIS declarations. These views in the international community are evidence that there is growing support for this view in the international community: 51 UNCLOS Parties, together with two non-Parties, represents a significant convergence in views on interpretation of the applicable legal rules.  The UK – with an interest in ‘maintaining the integrity of the interpretation and application of UNCLOS’[24] – should consider carefully the evidence that a significant and growing number of States are solidifying a path towards the legal preservation of established maritime zones.

c)      The UK should find confidence in the existence of a sound legal basis for the preservation of maritime zones as a matter of international law.  The strongest justification for the preservation of maritime zones lies in the convergence of what States say and what States do about the legal stability of maritime zones, that is, by meeting the requirements for subsequent practice establishing the agreement of UNCLOS Parties as to the interpretation of UNCLOS rules.[25] While there is no precise benchmark for determining when these requirements are met, ample evidence is presently available to illuminate the way that States are shaping interpretation of the legal rules on baselines and maritime zones under circumstances of sea-level rise, by what they do (eg domestic actions to stabilise their maritime zones) and what they say (eg that UNCLOS permits the preservation of maritime zones).[26]  The preservation of established maritime zones need not be seen as a radical departure from international legal norms, but rather as a step in the law’s orderly evolution by means of a thoroughly conventional toolkit: that of treaty interpretation.

8. To take steps to support the preservation of maritime zones, as a key plank of successfully implementing the UK SIDS Strategy ‘Ocean and biodiversity’ focus, I recommend:

a)      CHOGM 2024: The UK should take the opportunity of the 2024 Commonwealth Heads of Government meeting, to be held for the first time in Samoa (a SIDS from the Blue Pacific),[27] to formalise the UK’s commitment to the preservation of established maritime zones. At that meeting, the UK could explicitly take up the invitation extended by Samoa in 2022, when it explained its view that ‘because it is grounded on an interpretation of the existing law of the sea as reflected in UNCLOS, States from outside the Pacific Islands Forum membership are welcome to endorse and apply the approach of the [PIF] Declaration, including those that are not States Parties to UNCLOS’.[28]  The 2024 CHOGM meeting also presents an opportunity for the UK to seek to build further support within the Commonwealth.

b)      Ongoing engagement with the International Law Commission’s (ILC) study on sea-level rise on international law: In continuing to engage with this process, the UK should consider holistically the evidence of State practice that comes to light, and also continue to take the opportunity to advance and explain the UK’s own position. Notably, the US, like the UK, implements ambulatory baselines as a matter of its own domestic laws; however, in its most recent submission to the ILC, the US has stated its commitment to work with Pacific and other countries ‘toward the goal of lawfully establishing and maintaining baselines and maritime zone limits and will not challenge such baselines and maritime zone limits that are not subsequently updated despite sea-level rise caused by climate change.[29]  This might represent a model for developing a calibrated position for the UK that is both reflective of its own domestic position, and supportive of the Commonwealth SIDS’s position on the preservation of maritime zones.[30] 

c)      Steps to promote broader agreement amongst States as to the preservation of maritime zones.  The UK could consider taking steps to galvanise broader support for the preservation of maritime zones amongst LOSC Parties, potentially in the form of an interpretative agreement or declaration,[31] or also amongst the broader international community through other vehicles such as inclusion in the UN General Assembly annual oceans resolution.[32]

7 November 2023

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Annex

Table of SIDS and Commonwealth, PIF,
AOSIS and COSIS membership[33]

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