Hayley Keen & Charlotte Nichol – Written evidence (UNC0038)

UK Parliament International Relations and Defence Committee Inquiry

UNCLOS: fit for purpose in the 21st Century?

Sea level rise: The primary challenge to effective implementation of UNCLOS

Submission by Hayley Keen & Charlotte Nichol

12 November 2021

Executive Summary

While sea level rise is a threat that manifests in a remote temporality, the existential questions it raises for the United Nations Convention on the Law of the Sea[1] (UNCLOS or 'the Convention') are an imminent challenge to its ongoing implementation and enforcement in 2021, and into the future. This submission focuses on the impact of climate change on one of the most significant achievements of UNCLOS, the agreement of maritime boundaries, and resultant access to maritime resources for economic exploitation and scientific exploration. The indeterminate and substantial effect of sea level rise on maritime boundaries forces international law practitioners, non-Government and international organisations, and Governments like the UK House of Lords, to consider; is UNCLOS fit for purpose and what must be done to maintain its relevance?

To answer this question, this submission addresses questions six and seven of the call for evidence sought by the Committee and concludes that UNCLOS, with support from States like the UK, remains fit-for-purpose in the 21st century. While it should not be subject to textual re-negotiation, interpretations of its current provisions must be developed and agreed upon in order to maintain the legal certainty UNCLOS guarantees in the developing context of climate change related sea level rise. Fortunately, UNCLOS allows for the agreement of supplementary treaties, soft-law instruments, and State practice which supports these interpretations and maintains UNCLOS' relevance.

Part A considers the importance of 'freezing' baselines as a means of preserving States' maritime entitlements in the face of loss of territory due to sea level rise. This reinforces extant UNCLOS provisions as the best mechanism for continued oceans' governance and cooperation sea while also demonstrating UNCLOS' adaptability to climate-related threats through State practice. It discusses a number of current regional and national initiatives aimed at bolstering tbe current understanding and status quo created UNCLOS' thereby maintaining its relevance and updating understanding of its implementation. Part A also raises the issue of disappearing territory or ‘deterritorialised’ States existentially threatened by sea level rise, especially in the Pacific and Indian oceans.

Part B builds on Part A's discussion of freezing baselines to consider the options available to ensure that this key tenant of UNCLOS is preserved, thereby guaranteeing the Convention remains fit for purpose against a major climate-change threat. This includes (1) a supplementary agreement made through a meeting of interested parties under the auspices of the United Nations General Assembly (UNGA); and (2) adoption of an UNGA Resolution. Both options supplement the existing UNCLOS framework and facilitate the resolution of current challenges without undermining the Convention's authority. If the Convention were truly 'unfit' for modern challenges, it would be unable to demonstrate such flexibility in adapting, whereas it a supplementary agreement to UNCLOS is now a practised path.

From the discussion in this submission, it is clear that amending UNCLOS is neither practical nor necessary. Indeed, UNCLOS provides an ideal framework upon which supplementary agreements and customary international law can accommodate the developing needs of States in a future marked by climate change effects'.

PART A

Sea level rise and Statehood             

1.               The Intergovernmental Panel on Climate Change reports that the global mean sea level is rising, and this rise is accelerating.[2] By 2100, sea level is likely to rise by between 0.43m and 0.84m, with a projected maximum rise of 1.1m.[3] This projection seriously threatens the statehood of low-lying atoll States like the Marshall Islands, Kiribati and Tuvalu,[4] which may be reduced to barren land or uninhabitable rocks for the purposes of UNCLOS and no longer generate any maritime entitlements.[5]

2.              Submerging’ or ‘disappearing’ States are those island states at risk of suffering complete territorial inundation and thereby losing their status under UNCLOS and the 1933 Montevideo Convention criteria; namely, defined 'territory' (generally in the terrestrial sense), a permanent population, an effective government and the capacity to enter into relations with other States.[6] The former three requirements are considered customary international law, while the capacity to enter into relations with other States is contingent on there being recognition of statehood based on the other requirements.[7] This submission advances the importance of taking action under UNCLOS to ensure that submerging States retain their rights under article 121(2) even in the event of submersion or reclassification as a barren rock ordinarily conferring no rights as per article 121(3).

3.              The issue of continued recognition of statehood for submerging States must be recognised and connected to parallel law of the sea efforts as there is little point in pursuing a review of UNCLOS' application for states who may lose their statehood entirely. Options to consider in this regard, which are out of the scope of this inquiry are: (1) land acquisition from a second State; (2) merger with a second State; (3) the creation of a federation; and (4) the creation of a free association.

UNCLOS and Baselines

4. The following article is of significant relevance to this submission:

Article 121 Regime of Islands

1.                                                                                                                                                                                               An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2.                                                                                                                                                                                               Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall              have no exclusive economic zone or continental shelf.[8]

5.               UNCLOS enables the drawing of maritime zones from a ‘baseline’. The ‘normal’ baseline, applicable by default, is the ‘low-water line along the coast as marked on large-scale charts officially recognised by the coastal State’.[9] Whether the normal baseline is applied, and if so, what constitutes the low-water line, is for the discretion of the State.[10]

6.               Sea level rise poses an imminent threat to low-lying or island States. The low-water line is necessary for the measurement of maritime zones reliant on a distance to the coast, notably the territorial sea, exclusive economic zone (EEZ) and continental shelf (CS).[11] The International Court of Justice has twice ruled that ‘the land is the legal source of the power which a State may exercise over territorial extensions to seaward’,[12] supporting the suggestion that baselines, and therefore maritime zones, are informed by the land territory as it is, not as it was. As such sea level rise threatens the current maritime zones of island States such as New Zealand, Australia and the UK. With the loss of land territory, maritime entitlements are equally threatened by the operation of article 121 of UNCLOS.[13] The low-water line recognised by the State might ‘depart appreciably’[14] from the reality, when the sea increasingly covers or inundates low lying territory,[15] and when the error between reality and the low-water line of the recognised charts is significant, this might call into question the maritime zones claimed by the State.[16]

7.              It is also possible that islands currently recognised under article 121 of UNCLOS, become uninhabitable and incapable of sustaining economic life, and are re-classified as rocks.[17] This would result in a loss of extensive areas of jurisdiction including the EEZ and CS.[18]

8.               Some States draw straight or ‘archipelagic baselines’ reliant upon ‘outermost islands and drying reefs,’[19] or low tide elevations with an installation permanently above sea level,[20] in order to mark out their maritime zones. These features, and a States capacity to retain the associated maritime zones they demarcate, is threatened significantly by sea level rise. Additionally, if sufficient land is inundated, an archipelagic State might fail the land to water ratio or maximum baseline length rules.[21]

9.              In the case of delimitation of maritime boundaries between States, shared boundaries are fixed insofar as they are protected by treaty.[22] However, the submergence of low-lying features crucial to the delimitation will create doubt as to the validity of the submerged feature as the basepoint for maritime claims and the negotiated boundary.[23]

What can be done within the UNCLOS framework?

10.               The impact of climate change and sea level rise on maritime zones was not considered by the original drafters of UNCLOS.[24] However, an increasing volume of State practice exists in favour of using UNCLOS' existing provisions to fix the 'ambulatory' and archipelagic baselines at current levels. For example, in the Pacific region,[25] a number of States have fixed their baselines at current levels through domestic legislation and unilateral declaration.[26] States have entered into bilateral and multilateral agreements in favour of fixing baselines, such as the Taputapuātea Declaration[27] and the Delap Commitment.[28] Most recently the Pacific Islands Forum (PIF) released the Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea-Level Rise ('the PIF Declaration'),[29] committing to fixing the maritime boundaries at their existing levels. This means that even after sea level rise moves the baselines of states landward, their maritime entitlements will remain at current positions, 'notwithstanding any physical changes connected to climate change-related sea level rise.’[30]

11.               This activity indicates a desire and confidence by many affected States to use the existing international legal architecture to solve their most imminent climate-change related problem and demonstrating UNCLOS remains fit-for-purpose despite this interpretive challenge. States that advocate for maintaining the maritime zones conferred by UNCLOS ground their interpretation in rights ‘supported by both the Convention and the legal principles underpinning it’.[31] Further, they have support from authorities such as International Tribunal for the Law of the Sea Judge Jose Luis Jesus who has asserted that once baselines have been established under UNCLOS, they are, and should be given, an element of permanency;[32] and the International Law Association's Committee on International Law and Sea Level Rise which recommended that, once established, ‘baselines and [maritime zone] limits should not be required to be recalculated should sea level change affect the geographical reality of the coastline’.[33] Other institutions and scholars have similarly endorsed this approach.[34]

12.               UNCLOS' principles include both the rights to specific zones, including the EEZ,[35] and the rights to act in good faith with regard to the rights of other States.[36] The PIF Declaration asserts that UNCLOS ‘imposes no affirmative obligation to keep baselines and outer limits of maritime zones under review’.[37] This statement is true: at no point in the 320 articles or nine annexes of UNCLOS is there an obligation imposed on states to update their official charts of normal baselines or amend their straight baselines once they have been deposited with the Secretary-General of the UN.[38] Article 300 does contain an obligation to act in good faith and ‘exercise the rights, jurisdiction and freedoms recognised in this Convention in a manner that would not constitute an abuse of right’.[39] However in the absence of a specific, positive obligation to update baselines, there is no binding requirement on a State to do so.

13.              Such interpretations by States have begun the development of regional customary international law, which like general customary international law, is developed through a combination of State practice and opinio juris: the intention to create a legal norm.[40] These elements are internationally recognised and acknowledged by the International Court of Justice.[41]

14.               The actions of some States in fixing maritime boundaries[42] and by PIF members in releasing the PIF Declaration certainly constitutes prima facie evidence of regional State practice.[43] While the development of CIL also requires opinio juris, the PIF Declaration may be considered as early evidence of this legal necessity. State practice in responding to sea level rise has been with a requisite clear and consistent intention to create a regional norm that still supports UNCLOS.

15.              The crystallisation of fixed baselines as the accepted interpretation of UNCLOS through regional customary international law is crucial in the time-sensitive situation created by sea level rise. Customary international law may form at an accelerated rate in the face of an imminent threat,[44] especially for situations of high moral outrage or requiring an imminent legal response with little precedent.[45] The imminent threat that sea level rise poses to low-lying island states certainly attracts compelling urgency. The generation of CIL with regard to the interpretation of an existing treaty framework will help expedite the CIL process, which usually takes much longer to crystalise.[46] The most at-risk states do not have the time to wait decades or even years for new laws to eventuate, they merely need to prosecute the specific interpretation of extant laws.

16.               However, general customary international law, that is that the interpretation is more than a regional norm, will be crucial to ensure that the practice of fixed baselines is binding on all states to UNCLOS.[47] The regional State practice of island states and states whose interests are ‘specially affected'[48] is highly influential in developing customary law, but support from other States, like the UK, will be necessary to expand State practice into general customary international law.

Part A: Conclusion

17.              The increasing impact of climate change on the implementation of UNCLOS will require changes to how the international community interprets the current international legal framework. To ensure that principles of justice and good faith are applied to those states most impacted by climate change-induced sea level rise, this includes making allowances for affected states, such as fixing baselines at current levels and permitting island states to retain maritime entitlements even when their lands reduce to the point where they would ordinarily not attract an EEZ.

18.               States' willingness to use and supplement the UNCLOS framework to solve their imminent climate-change related sea level rise dilemma speaks to UNCLOS continued relevance. It is also pragmatic. The vast majority of countries bound by UNCLOS have coastal territory, which may incentivise agreeing to a simple interpretation already agreed currently which would protect their maritime entitlements under the Convention from contracting due to sea level rise in the future.

19.              An incidental effect of fixing baselines in response to sea level rise will be the preservation of existing maritime agreements. Providing certainty regarding the future of such agreements and declarations will be crucial for preserving regional stability and removing the need for time-consuming and contentious re-negotiation processes. This will be beneficial for countries, such as the UK, which hold interests in island territory across the globe.

20.               Further, while maritime entitlement is not traditionally constitutive of statehood, a country will require a significant incentive to be a host State of a disappearing States' government or peoples, specifically the economic benefits conferred by fixed maritime entitlements.[49] By fixing baselines at current levels, disappearing States may offer access to, or even control of, their maritime claims, or use any ongoing income that such entitlements provide to maintain their people and governance.

PART B

21.               Despite the protracted negotiations which occurred prior to the text of UNCLOS being agreed upon, the issue of sea level rise was never discussed. Further, after such an agreement process, the laborious and time-consuming process that is amending UNCLOS certainly hampers any enthusiasm to adapt the Convention formally.[50] Consequently, the version of UNCLOS that exists today may be considered no longer entirely fit for purpose. However, UNCLOS does enable realistic and timely alternative methods of adapting the Convention for the age of climate change-induced sea level rise. Especially, the provision of fixed baselines, remedying one of the main hindrances to effective implementation of UNCLOS in a climate change affected world.

Why not a formal amendment to UNCLOS?

22.               A formal amendment to UNCLOS to include additional, or alter existing provisions, is not a viable option due to the ‘cumbersome’[51] nature of UNCLOS’ amendment processes.

23.               The article 313 amendment procedure presumes ‘tacit consent’[52] by all parties to the adoption of a circulated amendment when one year expires and no objections are received.[53] This procedure should be dismissed because it essentially enables a single State Party to veto a proposed amendment.[54] It also does not facilitate the participation of non-States Parties, or a formal meeting to negotiate any objections. Commentary on article 313 also indicates that this procedure caters to singular, unopposed technical changes,[55] making it ill-suited for sea level rise purposes.

24.              The article 312 amendment procedure operates by the request of a State Party to UNCLOS to the Secretary-General to convene a conference to consider specific amendments.[56] If fifty percent or more of the States Parties oppose or are silent on the proposal to convene a conference, a conference does not proceed.[57] If a conference is convened, consensus-based decision-making is expected,[58] and voting is limited unless ‘all efforts at consensus have been exhausted’.[59] In light of this requirement, any resulting amendment would be highly dependent on the political negotiations of the conference.

25.               Any formal amendment is not binding on States who do not formally accept the amended provision.[60] As a result, making a formal amendment risks fragmenting adherence to the Convention. The Convention is considered a ‘package-deal’,[61] with UNGA annually reaffirming the ‘unified character’ and ‘vital importance [of] preserving [UNCLOS’] integrity.’[62] A proposed amendment would significantly impact upon UNCLOS’ perceived non-derogability if it fails to be adopted by consensus and is instead adopted by majority vote, or if States are divided on their formal acceptance.[63]

Preventing a challenge to the interpretation and practice of fixed baselines

26.               The Convention only provides for the concept of ‘fixed’ baselines in specific circumstances;[64] including unstable or heavily indented coastlines,[65] or coastline features such as bays and rivers.[66] The Convention does not explicitly provide for the fixing of baselines outside of these circumstances, and not in the manner consistent with the aim of preserving the current normal or archipelagic baseline as it was when declared.

27.               Currently the legality of States’ practice in fixing baselines relies on either; a specific interpretation of the normal baseline, a liberal interpretation of the provisions permitting fixed baselines in specific circumstances, or on the generation of customary international law rules accepting fixed baselines.[67] The legal source and interpretation of fixing methods is outside the scope of this opinion, however it is clear that an express rule supporting fixed baselines would be instrumental in legitimising State practice, and providing legal security for current maritime entitlements under UNCLOS.

28.               In the absence of an express rule, States might be incentivised to challenge States’ maritime claims, if they seek access to fishing resources and navigational rights which are currently restricted. Under the accepted theory of ambulatory baselines,[68] areas of the high seas not subject to sovereign claim,[69] would become available as baselines and maritime zones retreat.[70]

29.               Unilateral declarations of an ‘intention to maintain current maritime zones irrespective of sea level rise’,[71] and boundary delimitations premised upon fixed baselines,[72] are merely effective in maintaining the status quo for the State temporarily.[73] These practices and UNCLOS’ current provisions do not provide a certain defence to any legal challenge over the validity of maritime zones and boundaries measured or delimited from features affected by sea level rise.[74]

30.              It is recommended that affected States advocate for an UNGA Resolution, or supplementary agreement to UNCLOS, which supports the relevance of UNCLOS, and the commitments pursued in regional agreements. The widespread development of the following suggestions will also be crucial to ensuring that regional practice can be crystallised into binding general customary international law.

Option 1. Supplementary Agreement

31.               The best option in the long-term is to advance a supplementary agreement drafted by a conference of interested parties within the auspices of the UNGA. Affected States' have the opportunity to propose a supplementary agreement which follows the example of the Fish Stocks Agreement, maximises non-State Party involvement, and secures the legality of fixed baselines in light of sea level rise.

32.              UNCLOS is flexible enough to allow this method. The Convention does not preclude States Parties from negotiating or adopting agreements supplementing or interpreting it.[75] Instead, it allows further collaboration, including by subsequent multilateral agreement, as an appropriate method of remedying unresolved issues or omissions.[76] A supplementary agreement formalises developing interpretive adjustments to the Convention,[77] and is therefore suitable for sea level rise objectives. 

33.              The Convention does not specify how a supplementary agreement might be made, however the preeminent method, used in the adoption of the Fish Stocks Agreement, is through a conference of interested parties of the UNGA.[78] In this case, the UNGA would decide by Resolution to convene a conference on the issue of baselines and sea level rise.[79] After the conference drafts an agreement, ratification or provisional application of the agreement is encouraged through UNGA Resolutions calling on all States to give effect to the agreement.[80]

34.              States who are not parties to UNCLOS are able to be part of the conference of interested parties of the UNGA and are able to consent to the agreement due to its separate and freestanding nature.[81] This is particularly important in light of the United States’ status as a non-State Party.[82]

35.               A supplementary agreement, like the Fish Stocks Agreement, does not become a single instrument with UNCLOS or amend the Convention.[83] Rather, the Fish Stocks Agreement complemented the Convention, with an objective of ‘effective implementation of the relevant provisions of the Convention’ to be interpreted ‘in the context of and in a manner consistent with the Convention.’[84] A comparable supplementary agreement on fixed baselines, would share a similar objective.

36.               A supplementary agreement expands upon existing rules,[85] and provides a legally binding interpretation for those States which agree to it.[86] There is scope for a supplementary agreement to introduce significant changes to the Convention’s regime, which the Fish Stocks Agreement did by carefully balancing tacit modification with complementary clarification.[87] Depending on the text, a supplementary agreement on fixed baselines might also introduce changes which some States might consider extensive, so careful drafting would be required to work within the Convention’s limits.

37.               A supplementary agreement on fixed baselines cannot derogate from the ‘effective execution of the object and purpose of the Convention’ or affect its fundamental principles.[88] Some of the fundamental principles of UNCLOS include; the conception of the ocean as the ‘common heritage of mankind’, that the benefits of the oceans are for mankind as a whole, that the oceans are for peaceful uses, and that certain areas of the oceans are not subject to sovereign claim.[89] Ultimately, whether a supplementary agreement impinges significantly on these principles will depend on the text proposed. However, UNCLOS was devised to ‘facilitate international communication… promote peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, [and] the conservation of their living resources’.[90] It is highly unlikely that fixing baselines would be considered as breaching these aims.

38.               Rather, a proposal which ‘stays’ the status quo could easily be characterised as facilitating them in light of new circumstances. The concept that baselines might be ambulatory or that entire maritime zones can be lost with the unforeseen submergence of a feature, is not likely accurately characterised as being integral to the fundamental principles of the law of the sea regime which the Convention establishes. Current State practice displacing the normal baseline in favour of unilaterally declared alternative baselines which are unchallenged, and the emerging pragmatic reasons for fixing baselines due to maritime technological advances, and the resource-intensity of perpetually updating charts for accuracy or artificially reinforcing submerging features have raised many arguments for permitting fixed baselines.[91]

39.               The effect of the supplementary agreement is to formalise the legal nature of State practice and authorise an interpretation which permits fixed baselines under the current provisions. A supplementary agreement should be an agreeable method of achieving this outcome to many UNCLOS States Parties, as it would have the effect of preserving, not changing, the rights present and agreed to under the Convention, while upholding the integrity of UNCLOS.

40.              Nevertheless, it is possible that fewer States will accept the supplementary agreement than are Parties to the Convention. In this situation, a supplementary agreement is still advantageous and potentially remains applicable to non-parties, because of its normative impact[92] and through a process of treaty interpretation. Although supplementary agreements can only ‘be taken into account’[93] in interpretation of a treaty, some commentators believe that the Fish Stocks Agreement might still apply to non-parties to the agreement through its intention and utility in informing an interpretation of UNCLOS.[94] This might similarly be the case with the establishment of a supplementary agreement on fixed baselines.

41.               The supplementary agreement might also be applied to non-parties to the agreement, by the norms fostered and codified therein, and the agreement’s representation of, and influence on, customary international law.[95] Factors which impact on the potential of a supplementary agreement to be considered enforceable through customary international law include, the number of parties privy to negotiations, the universal applicability of the language used in the text, and any subsequent UNGA Resolutions calling on all States to comply with the agreement.[96] In this context, negotiation by a conference of the UNGA’s interested parties, emphasis on consensus as the method of adoption, and use of ‘generalised language,’ like that found in UNCLOS, making it applicable to all States, and the subsequent encouragement of UNGA Resolutions will be critical.

42.              A supplementary agreement on fixed baselines would legitimise an interpretation under UNCLOS permitting such practice without amending the Convention’s provisions. It would also enable a comprehensive clarification of how baselines and maritime entitlements would be preserved in light of sea level rise.

Option 2. UNGA Resolution

43.               As an alternative, or in advance of a supplementary agreement, an UNGA Resolution could support a regime of fixed baselines in response to sea level rise. An UNGA Resolution would strengthen State practice, formalise soft-law initiatives, and build the case for the legality of fixed baselines’ through regional custom and customary international law.

44.              In the absence of a specifically competent body in the Convention, the UNGA reviews the conformity of State practice with the Convention in general terms, and summarises salient issues in its annual Resolution on the Law of the Sea.[97] It also considers Resolutions on specific law of the sea issues as they arise, such as the Resolutions implementing a moratorium on, and the eventual cessation of, driftnet fishing.[98] These issue-specific Resolutions provide a successful model in garnering acceptance of fixed baselines among States through the UNGA.

45.               Although an UNGA Resolution can stand alone, it is suggested as a method of complementing and strengthening a supplementary agreement, as an UNGA Resolution might be weakened by its non-binding status.[99] This is especially true where States are incentivised to disregard a Resolution for their own economic gain (for reasons addressed above at [10]).[100] Even if progressed independently, an UNGA Resolution has a voluntary normative effect on States interpretation of UNCLOS, can evince a norm of customary international law, and can contribute to customary international law (depending on the language of the resolution and its method of acceptance, subject to the opinions of States).[101]

46.               Generally, an UNGA Resolution on law of the sea issues is conceived in the Second Committee. The consensus-based approach of the Second Committee may assist in applying pressure to States who might be slow to agree to fixed baselines, or force at least a short-term compromise resolution.[102] Consensus or adoption by a majority aids the characterisation of an UNGA Resolution as constitutive of customary international law.[103] The Resolutions banning driftnet fishing were particularly authoritative and had great normative value due to their passing without a vote.[104]

47.               An UNGA Resolution captures increasing international awareness and address growing concerns over sea level rise. The successful adoption of the Resolutions banning driftnet fishing, were in large part attributable to an acute level of awareness and support on the issue, and growing concerns over sustainable development, resource exploitation, and impacts on the environment generally.[105] Similar general worry is emerging over the effects of climate-change, with serious attention now being paid to sea level rise and the law of the sea, which – as highlighted in the following – could be utilised in encouraging an UNGA Resolution.

48.               To date, the UN has responded to concerns over sea level rise through the establishment of the Open-ended Informal Consultative Process on Oceans and the Law of the Sea (ICP),[106] intended to facilitate UNGA’s annual review of law of the sea on ensure a focus on specific problems.[107] The upcoming meeting the ICP is considering sea level rise and its impacts,[108] representing an opportune moment to suggest an UNGA Resolution specifically on the issue.[109] The Secretary-General and UNGA have through the annual Resolution and Report increasingly recognised some of the significant issues related to sea level rise and the need to enhance efforts to address the problem.[110]

49.               The legal impacts are being specifically considered with the International Law Commission including the sea level rise into its programme of work and creating an open-ended study group on the matter.[111] The International Law Association also charged specialised Committees to study the impact of sea level rise on existing law,[112] and develop proposals on the progressive development of the law on the issue.[113]

50.              An UNGA Resolution would be both informed by, and give more formal international support to, individual State law and practice, as well as regional law and practice. These developments were highlighted for acceptance by the international community in the Resolutions banning driftnet fishing.[114]

51.               Critically, an UNGA Resolution enables all members of the UN to engage on the topic, even if they are not a party to UNCLOS. This has the capacity to more directly influence the policies of regional organisations such as the EU and UN groupings, which in turn can influence the approach of multiple States.[115]

52.               From a legal perspective, the negative consequences of proposing an UNGA Resolution are negligible. As an UNGA Resolution is separate from the Convention framework, it does not risk fragmenting adherence to the Convention. Instead, the potential to run a Resolution on the problem multiple times (i.e., once certain aims of the Resolution are exhausted, or for example, annually), and the staggering of deliberations through informal meetings, Second Committee, and before the UNGA plenary, gives the opportunity to negotiate compromises, adapt the text, and control any risk.

Part B: Conclusion

53.               In order to secure the legal position of fixed baselines under UNCLOS, specially affected regional groupings or even individual States should consider proposing a supplementary agreement. This is the best option to formalise current State practice while retaining the integrity of the Convention. Previous supplementary agreements have demonstrated their normative effects and influence on customary international law.[116] Noting the time and resource intensity of a supplementary agreement, a complementary UNGA Resolution in the interim strengthens the legality of fixed baselines in customary international law, formalises State practice and soft-law initiatives,[117] and may operate as an authority on interpretation of UNLCOS, depending on the text.

54.               Mindful of the aims of the Convention to facilitate cooperation and protect the fundamental principles of the law of the sea, UNCLOS, as a framework Convention, is suitably flexible to allow a supplementary agreement and an UNGA Resolution to respond to the challenge of sea level rise where the Convention does not.[118] UNCLOS will remain relevant, and can adapt to be effectively implemented with the aforementioned alternatives pursued to remedy the few inconsistencies which the Convention creates in the new climate-change affected environment.

CONCLUSION

55.               Sea level, a core tenant of UNCLOS, is subject to impending consequences as a result of the 21st centuries' fundamental challenge, climate change. However, UNCLOS, the 'Convention of the Oceans,' is a framework agreement which adeptly facilitates pursuance of number of opportunities, through instruments and practice, to carry its rules, rights and obligations into modern application. This submission supports State practice which interprets UNCLOS in favour of fixed baselines and recommends States pursue either a supplementary agreement to UNCLOS or an UNGA Resolution in order to formalise the legality of their practice.

56.               The challenge of climate change related sea level rise to the effective implementation of UNCLOS does not denigrate the Convention's ongoing fitness for its aims. As noted by the Committee's call for evidence, UNCLOS has recently been recognised by the UNGA as "a critical part of the rules-based international system". With a straightforward formalisation of the legality of fixed baselines, and widespread State support for such an interpretation, UNCLOS can survive challenges to the enforceability of maritime zones as currently recognised, preserve maritime entitlements and freedom of the seas and, in so doing, continue to reflect and uphold the UK and many other coastal States' interests.

57.  We trust this submission will be of assistance to the UK Government in forming a position on the ongoing suitability of UNCLOS, given the ability of supporting agreements and customary international law can ensure that the Convention remains fit-for-purpose.

Received 22 November 2021

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