Chapter 4: Climate change and the environment
114.Climate change was not well understood in the 1970s and 1980s when UNCLOS was negotiated, and we heard that the convention is therefore “largely climate silent”.132 This presents a range of challenges in the 21st century, where the impacts of climate change, including sea level rise, are already a reality, and Professor Schofield told us that in many ways, UNCLOS is “not adequate” for addressing the impacts of climate change.133
Baselines and maritime entitlements
115.The recently published Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) found that “global mean sea level has risen faster since 1900 than over any preceding century in at least the last 3000 years”.134 Under an intermediate greenhouse gas emissions scenario, the global mean sea level will likely increase by between 0.44 and 0.76 metres by 2100, though it could increase as much as 1.01 metres under a very high emissions scenario.
116.Rising sea levels pose a challenge to the maritime entitlement provisions in UNCLOS. Currently, maritime zones are calculated from baselines. The most commonly used baseline (the ‘normal baseline’) follows the low-water line along the coast of a state. Professor Schofield told us that the “traditional view” is that baselines move with the low-water line (they are ‘ambulatory’).135 As sea levels rise, the low-water line of many coasts will move inwards.
117.This interpretation has significant implications for coastal states, especially small island states and low-lying states. Witnesses noted that low-lying island states face an “existential threat” due to rising sea levels.136 Hayley Keen and Charlotte Nichol told us that:
“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.”137
118.Loss of territory will therefore, in theory, impact a state’s maritime entitlements, as these stem from the land. Dr Philipp Kastner, Senior Lecturer at Law School at the University of Western Australia, referred to this as a “double loss”.138 Even where land is not fully submerged by rising sea levels, contracting baselines could mean that an island state’s territory could be reclassified and lose maritime entitlements. Article 121 of UNCLOS defines an island as a “naturally formed area of land, surrounded by water, which is above water at high tide”.139 Islands enjoy the same maritime zones (territorial sea, contiguous zone, EEZ and continental shelf) as other land territory. If it cannot sustain human habitation or economic life, it is classified as a ‘rock’ and is not entitled to an EEZ or continental shelf. If it is only above water at low tide, it is classified as a low-tide elevation and has no maritime entitlements.140 Professor Evans noted that “barely perceptible tidal increase[s] in water” could result in islands being reclassified as rocks or low-tide elevation and states losing significant portions of their maritime entitlements.
119.In response to this issue, in August 2021 the Pacific Islands Forum (PIF), which represents many of the island states most affected by rising sea levels, issued a declaration confirming its intention to maintain maritime boundaries and zones at their current position (to ‘fix’ their baselines).141 The declaration notes that UNCLOS “was premised on the basis that, in the determination of maritime zones, coastlines and maritime features were generally considered to be stable”, which has not proved to be the case. It also notes that UNCLOS “imposes no affirmative obligation to keep baselines and outer limits of maritime zones under review nor to update charts or lists of geographical coordinates once deposited with the Secretary-General of the United Nations”, and as such “our maritime zones … shall continue to apply, without reduction, notwithstanding any physical changes connected to climate change-related sea-level rise.”142
120.Professor Churchill and Dr Hartmann told us that “opinion is divided” on whether baselines should be fixed, considering that maritime entitlement has always been premised on sovereignty over land.143 But Professor Serdy told us that the PIF Declaration would be a “sensible legal policy response for all coastal States, not just the 17 that adopted it”, as it “avoids the gradual diminution of the areas over which [states] currently exercise sovereignty and jurisdiction… while other States lose nothing by it”.144 He recommended that the UK adopt a similar policy position. Dr Kastner agreed, saying that such a policy would be “beneficial to all coastal states, including the UK”.145 Dr Surabhi Ranganathan, Associate Professor at the University of Cambridge and Co-Acting Director of the Lauterpacht Centre for International Law, and Professor Schofield noted that there is a “justice” element to this issue, as states that have contributed least to climate change are most vulnerable to its consequences.146
121.We heard support for the PIF’s interpretation that UNCLOS does not require states to keep their charts updated and can therefore maintain the maritime boundaries and zones they have previously deposited with the United Nations.147 The National Oceanography Centre also highlighted that where states have bilaterally or multilaterally agreed maritime boundaries, under the Vienna Convention on the Law of Treaties “such agreements cannot be terminated or withdrawn” if circumstances change.148
122.We heard that for a policy of fixed baselines to be effective, it needs to be adopted by the majority of states. Sir Michael said that it was difficult to see how a “regional customary rule could assist PIF members, given that to be effective maritime zones need to be applicable … towards all States”.149 Hayley Keen and Charlotte Nichol said that while the development of regional customary international law via the PIF declaration is important and will be “highly influential”, developing general international law will also be “crucial to ensure that the practice of fixed baselines is binding on all states to UNCLOS.”150 They advocated for the negotiation of a supplementary agreement to UNCLOS, similar to the Fish Stocks Agreement, to “secure the legality of fixed baselines in light of sea level rise.” They noted that this would have advantages to formally amending UNCLOS and recommended negotiating the agreement under the auspices of the UN General Assembly, which was the method used for the Fish Stocks Agreement, as it allows states who are not parties to UNCLOS (such as the United States) to consent to the agreement as well.151
123.Sir Michael told us that these issues are currently under consideration by the UN International Law Commission (ILC) as of its 2021 session.152 Professor Harrison explained that states will “have to respond to any recommendations from the International Law Commission, in a way that balances the need for stability and security in the law of the sea with the objective of promoting equity in responding to climate change” and that “serious consideration” will need to be given to the mechanism of change, “avoiding if possible a formal amendment to the Convention in order to preserve the integrity of UNCLOS.”153
124.The Minister told us that the Government is “still considering what our position is in relation to the proposals by the small island developing states on baselines”.154 Andrew Murdoch said that “the UK’s practice in its own baselines has been ambulatory”, but that “this issue is being looked at very carefully by the International Law Commission”. He added that while it is “clearly a very important issue” it is “one where states are not necessarily rushing to come out with a view” as this “might risk undermining the convention.”155
125.Sea levels will continue to rise over the coming century as a result of climate change. This will have significant impacts on the traditional mechanisms of establishing maritime entitlements for coastal and island states. In particular, it will impact low-lying and small island states, which face an existential threat. The UK and its Overseas Territories will also be affected by this issue.
126.The Government 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. The Government should work with partners to advance agreement amongst States Parties to UNCLOS and create supplementary legal mechanisms that secure maritime baselines and entitlements.
Displaced persons and climate change-related refugees
127.Loss of statehood or territory as a result of sea level rise would lead to an increase in displaced people and refugees. The World Bank estimates that more than 200 million people could be displaced by the impacts of climate change by 2050.156
128.We asked the Minister how prepared the UK is to support climate change refugees. He told us that the Government recognises that “climate change will increasingly become a significant factor in driving migration” and highlighted a Rapid Evidence Assessment undertaken by the FCDO on the impacts of climate change on migration patterns.157 He also restated the UK’s commitment to the goals of the Global Compact on Refugees. But he did not outline any specific preparations the UK is undertaking to support climate change refugees.
129.We are encouraged that the Government recognises that climate change will become a significant driving factor for migration, but ask that it provides further detail in its response to this report on the ways in which the UK is preparing to support these people in light of the real risk some may lose their territories and statehood. This is an immediate and growing problem which needs global leadership and political will. We ask that the response includes details of those territories most likely to be at risk and the number of people likely to be adversely affected.
Impact of climate change on the marine environment
130.The climate and the oceans are inextricably linked. Professor Petrig said that it is “beyond doubt that the oceans play a very essential role in climate regulation”, referring to them as the “engine room of the climate system”.158 Professor Guilfoyle told us that “nearly half of all carbon dioxide released in the period since industrialisation by human activity has been absorbed by the oceans”; without this, the level in the atmosphere would be much higher.159
131.This has a range of impacts on the marine environment, including ocean acidification, changing ocean chemistry and changing ocean circulations.160 In turn, these affect the abundance and distribution of marine species and the health of valuable ecosystems such as mangrove forests and coral reefs. Professor Harrison noted that the severity of these issues “varies on a regional basis”.161 The oceans are also affected by changing atmospheric circulations, air temperatures, and patterns of extreme weather caused by climate change.
132.While UNCLOS does not directly consider climate change, it places broad environmental obligations on states. Part XII of UNCLOS obliges states to “prevent, reduce and control pollution of the marine environment from any source” and to “take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment”.162 The Advisory Committee on the Protection of the Sea (ACOPS) told us that ‘any sources’ includes all marine, land and atmospheric sources of pollution, including greenhouse gas emissions.163
133.Professor Malgosia Fitzmaurice, Professor of Public International Law at the Queen Mary University told us that pollution from shipping is addressed by the International Convention for the Prevention of Pollution from Ships (MARPOL), which was adopted in 1973, and is widely considered to be successful.164 But Professor Churchill and Dr Hartmann explained that there are “no global rules addressing pollution from land-based sources”, which accounts for around 80 per cent of marine pollution.165 Professor Harrison concurred: “In the case of pollution from land-based sources … UNCLOS simply requires that states ‘take into account internationally agreed rules, standards and recommended practices and procedures’”. He said this “weak formulation … gives states too much discretion to decide how to deal with this significant problem” and “the main global instruments on this topic are non-binding in character”.166
134.We also heard that the oceans have not been a key consideration in international attempts to combat greenhouse gas emissions, a major source of land-based pollution. Professor Barnes said that this is partly because “the law of the sea has largely developed apart from the climate change regime.” Reducing greenhouse gas emissions and addressing their impact is more explicitly within the remit of United Nations Framework Convention on Climate Change (UNFCCC). Dr Richard Caddell, Senior Lecturer in Law at the Cardiff Law School, told us this separation has led to the oceans “fall[ing] between two stools. The climate negotiations are busy looking at emissions, forests and other elements like that and consider this a law of the sea problem. Arguably, the law of the sea considers this a climate change problem.”167
135.Other witnesses agreed that the UNFCCC process has not sufficiently dealt with the impact on oceans and the marine environment, including in the landmark 2015 Paris Agreement, which committed to keeping global temperatures rise “well below” 2°C.168 Professor Petrig said:
“The oceans have not received the place they should merit in those legal frameworks. There is no explicit reference, for example, to sea level rise in the UNFCCC, and hardly any explicit reference or mention of the oceans beyond the preamble in the 2015 Paris Agreement, not so much because of lack of awareness of the climate-ocean nexus in 2015, but rather due to the concern that adding that element could jeopardise the already fragile negotiations and consensus at the time.”169
136.The Minister told us that after the most recent Conference of the Parties to the UNFCCC (COP26, held in Glasgow in November 2021) there is now a greater recognition that “climate action is ocean action”, but that “the UNFCCC has not been considered the vehicle for delivering the scope of changes that we will need if we are to safeguard the future of the world’s oceans.”170 Professor Petrig agreed that there was a “big step forward” at COP26, where “the oceans were formally incorporated in the UNFCCC process.”171 But she said that even if effectively implemented by states, she “seriously doubt[s] that the COP26 decisions are enough to address the negative consequences of climate change on the oceans, such as sea level rise, ocean acidification or ocean deoxygenation.”172
137.Some witnesses thought that the provisions in UNCLOS could be better utilised to tackle the impact of climate change on the oceans. The Advisory Committee on the Protection of the Sea wrote: “Unlike the UNFCCC, [UNCLOS] does require the necessary actions to prevent, reduce and control this pollution with enforceable language and its legal mandate is binding and legally enforceable on all States.” They added: “That the UNFCCC does not require these actions does not render inapplicable [UNCLOS’s] obligations on the UNFCCC parties.”173 Professor Guilfoyle agreed: “Introducing CO2, or indirectly excess heat energy, into the oceans would be relatively straightforward to class as pollution of the ocean under Article 1 of UNCLOS.”174
138.We heard that competent international organizations under UNCLOS were already being used to address aspects of this issue. Professor Schofield told us that the IMO has set a target of reducing carbon dioxide emissions by 40 per cent by 2030.175 Professor Harrison said that progress has been made on setting energy efficiency standards for new ships but “significant challenges remain in converting the existing fleet to minimise emissions”.176 However, he said that:
“The United Kingdom should be commended for its leadership role in this respect, being one of the first countries to produce a national action plan to address greenhouse gas emissions from ships (the Clean Maritime Plan) … [and] one of several states who launched a Declaration on Zero Emission Shipping by 2050 at COP 26.”177
He added that it is “vital that the signatories to the declaration work through the IMO to get multilateral agreement on more ambitious measures as a matter of urgency, in particular a more ambitious IMO Strategy when it is reviewed in 2023”.178
139.As is common to several of the challenges facing UNCLOS, we heard that enforcement is difficult. On the issue of land-based sources of pollution, Professor Barnes and Professor Elizabeth Kirk, Professor of Global Governance and Ecological Justice at the University of Lincoln, told us that “it is not that the obligations … are not often subject to enforcement action, but that it is left to the discretion of states to interpret and decide how to implement those obligations.”179
140.We heard that UNCLOS’s dispute settlement mechanisms could be used by states who consider that other states are not fulfilling their environmental obligations. Professor Guilfoyle told us that “we can expect to see small island states bringing dispute resolution cases seeking clarification on the content of those obligations as regards other UNCLOS parties.”180 Dr Ranganathan noted that there has already been a “rise in climate litigation in domestic courts”, and that the dispute settlement mechanisms under UNCLOS could be used in a similar way.
141.However, UNCLOS’s mechanisms have not been used for this purpose so far and Dr Ranganathan said the process would face “difficulties”. First, the Tribunal might decide it does not have the jurisdiction for a dispute that is “more properly a climate dispute, not an ocean dispute”, and may suggest it should be considered under procedures provided for under climate treaties. Second: “The language in which UNCLOS specifies duties to the marine environment is even now both weak and qualified. The same Part XII that set out states’ rights to protect the marine environment also reiterates their right to exploit their natural resources.” She said it was “unclear” what litigation would achieve “without strengthening the substantive duties” first and recommended that the UK takes a greater role in strengthening these duties through its own practice and advocacy at international fora.181
142.There is also the potential for the dispute settlement mechanisms under UNCLOS to be used for Advisory Opinions. Professor Petrig gave the example of the recently formed Commission of Small Island States on Climate Change and International Law, which was “explicitly authorised in its agreement, when it was established, to request an advisory opinion from the International Tribunal for the Law of the Sea.” She saw “various potential questions relating to UNCLOS for such advisory opinion: the legal consequences of sea level rise on baselines and the outer limits of maritime areas; the legal consequences of sea level rise for islands and rocks; the rights and obligations of states regarding the protection of oceans as part of the climate system”.182 Professor Guilfoyle agreed, saying that recourse to ITLOS for an Advisory Opinion by smaller states could “elevate those issues and not only give legal guidance but provide a degree of moral pressure on states to take these questions more seriously”.183
143.UNCLOS places states under an obligation to “prevent, reduce and control pollution of the marine environment” from all sources, including greenhouse gas emissions. This obligation is increasingly important because of the inter-related nature of climate change and environmental degradation, including via ocean acidification and the displacement of marine species. Despite success in managing marine sources of pollution, there has been less attention paid to the impacts of greenhouse gas emissions and climate change on the oceans. In part, this results from a lack of coordination between the UNCLOS and UNFCCC processes. The Government should continue to push for recognition of the oceans within the UNFCCC, and for greater coordination between the UNFCCC and UNCLOS processes.
144.The obligations in UNCLOS and related instruments to protect the marine environment relating to land-based sources of pollution are weaker than those relating to marine-based pollution, which is successfully managed by the MARPOL treaty. Strengthening the duties relating to land-based sources of pollution will require greater cooperation between the UNFCCC and UNCLOS processes. The UK Government should aim to be a leader in this regard.
145.The UK should continue its efforts to be an international leader in net zero shipping, and work through the IMO to get multilateral agreement on more ambitious measures.
Distribution of fish stocks
146.UNCLOS provides the legal framework for the management of fish stocks. Under the Fish Stocks Agreement (the second implementing agreement to UNCLOS), fisheries that straddle EEZs and those in the high seas are managed by Regional Fisheries Management Organizations (RFMOs).
147.Professor Barnes and Kirk told us that climate change will impact the distribution of fish stocks and marine biodiversity more generally:
“Both will change as warming temperatures drive species poleward and as ocean acidification interferes with the abilities of some species to thrive by interfering, for example, with the ability to form shells. Species moving poleward will act in the same way that invasive species do, at times out-competing ‘native’ species and changing ecosystems functions and dynamics.”184
148.This poses several challenges for the management of fisheries. First, it increases “uncertainty… and diminishes the scientific basis of decisions on catch allowance”. Professors Barnes and Kirk explained that RFMOs have already “struggled to develop equitable and flexible allocation rules to deal with the distribution of fish” and that “climate induced changes will make this even more difficult to develop and implement in the future.”185 Professor Churchill and Dr Hartmann gave the example of north-east Atlantic mackerel, which until recently was managed co-operatively by the EU, the Faroe Islands and Norway. They told us that: “Climate-induced changes have affected the distribution of the mackerel so that it is now also found in the EEZ of Iceland and on the high seas”. As such, “the former trilateral arrangement has become outdated, but an effective arrangement to replace it has not yet been agreed.”186
149.Second, due to the nature of maritime jurisdiction, changing distributions of fish stocks may generate “winners and losers”, as fish stocks move away from traditional fishing grounds.187 The Environmental Justice Foundation said that this could lead to disputes, and gave the example of West Africa where such pressures are already present. They noted that “Fishers are already travelling further and for longer periods than in the past in response to dwindling returns on their excursions,” and that this “will continue to pose significant challenges to transboundary disputes as fishers cross rigid national or institutional jurisdictions, either legally or illegally, to maintain their livelihoods”.188
150.The FCDO were also aware of the economic implications of climate-change induced changes to fish distributions:
“The warming, acidification and deoxygenation of the ocean is changing the abundance and distribution of fish populations. This will affect the fishing opportunities of States, with some benefitting from increases and others suffering losses. This poses a problem in terms of food security and livelihoods; could be a potential source of friction between States and will be a significant management issue for Regional Fisheries Management Organisations.”189
151.Professor Barnes and Professor Kirk told us that cooperation will be critical for the management of fisheries, in particular with neighbouring states. They said:
“Failure to agree cooperative measures and to reach compromise on competing interests will only result in costly disputes and risks to already vulnerable fish stocks. The UK needs to show leadership in existing international fora, and to build strategic partnerships with other States to maximise opportunities for collective gains.”190
The implications for the management of fish stocks as an economic resource will be discussed further in Chapter 7.
152.Climate change is already altering the distribution of fish stocks in the global ocean and will continue to do so. This creates the potential for disputes, as fish stocks move away from traditional fishing grounds.
153.Cooperation with partners, especially neighbouring states, will be crucial to manage the implications of changing distributions of fish stocks.
The Arctic
154.The Arctic is at particular risk from climate change.191 The IPCC Sixth Assessment Report found that there is high confidence that the Arctic will warm at around twice the rate of average global warming, and that it is likely the Arctic will be “practically” ice-free in September at least once before 2050.192
155.Dr Ranganathan told us that there is a danger that as the sea ice melts, the Arctic might end up “being treated just like the rest of the ocean” and Arctic states may make “expanded continental shelf claims” over it.193 Professor Schofield added that there are already “multiple and overlapping assertions of rights” from the five Arctic coastal states (the ‘Arctic Five’) but that so far, the states are “playing by the rules” by making submissions to the Commission on the Limits of the Continental Shelf, the organisation under UNCLOS tasked with delimiting continental shelf claims.194
156.There are also concerns about the protection of marine biodiversity in the high seas of the Arctic, which Dr Ranganathan told us is a “very fragile marine environment”.195 Monim Benaissa, part-time Professor and Researcher at the University of Ottawa’s Faculty of Law, wrote that major fishing nations are likely to extend their operations into the Central Arctic Ocean as ice retreats.196 In 2018, the EU and nine countries (including the Arctic Five) signed the Agreement to prevent Unregulated High Seas Fisheries in the central Arctic Ocean, and as a result, no commercial fishing presently takes place in that region. However, Monim Benaissa explained that the agreement has only “temporarily frozen” fishing activity in these waters, and that “the race to commercial exploitation is not ruled out but is postponed.” He added that the Arctic Council alone will not be able to legislate for this issue, as under UNCLOS it does not have jurisdiction over the high seas, and the involvement of third-party states, including the UK, will be necessary for the effective implementation of conservation efforts such as MPAs.
157.Shrinking ice cover may also lead to expanded shipping routes. Dr Ranganathan said this will raise questions as to whether these waters are within national jurisdictions (as Canada claims), or if they will be regarded as international waters.197 Dr Youri van Logchem, Senior Lecturer at the University of Swansea’s Institute of International Shipping and Trade Law, highlighted that increased shipping will have environmental impacts, but that there are uncertainties about how these can be addressed by UNCLOS. Article 234 of UNCLOS allows coastal states to adopt shipping regulations that go further than the IMO conventions in order to prevent and control pollution in ice-covered areas. This has been relied upon by states including Canada and Russia. But this is premised on the area being ice-covered for a majority of the year. Dr van Logchem explained that when that is no longer the case, some states could argue Article 234 is redundant, limiting coastal states’ ability to prevent pollution.198
158.The FCDO told us that it “recognises economic opportunities” in the Arctic as the ice melts, but that “is clear that they must be achieved within the framework of UNCLOS, and that we must work to protect the Arctic environment, and to prevent contraventions of the rules based international system on which global prosperity depends.”199
159.The Arctic is a fragile and valuable marine environment that is facing significant climate change impacts. It is vital that the increased economic opportunities are not prioritised over protecting the marine environment.
160.We welcome the recent 16-year international agreement banning commercial fishing in the Central Arctic Ocean. The UK, in its role as an observer at the Arctic Council, should continue to advocate for the prevention of unregulated fishing in the Arctic Ocean, and for the establishment of marine protected areas.
Marine biodiversity
161.We heard that there are “accelerating levels of biodiversity loss in the marine environment”.200 The Food and Agriculture Organization estimate that around one-third of global fish stocks are over fished,201 and in a 2014 only 3 per cent of the global ocean was found to be “free from human pressure”.202 While UNCLOS includes broad obligations for states to “protect and preserve the marine environment”,203 we heard that it currently lacks detailed mechanisms to enforce this obligation.204
162.There are other conventions aimed at the conservation of the marine environment and marine biodiversity. These include the Convention on Migratory Species, the Convention on International Trade in Endangered Species, the Whaling Convention and the UNESCO World Heritage Convention and the Ramsar Convention on Wetlands.205 Under the Convention on Migration Species, several supplementary agreements have been agreed at the regional level, which has led to the establishment of many marine protected areas (MPAs) across the world.206 Greenpeace UK wrote that MPAs are “the most cost-effective means to enable marine life to recover and adapt to the impacts of multiple stresses and climate change”.207
163.Joanna Szuminska told us that it was a UK proposal that led to the establishment of the first MPA-like entity in the Ross Sea region.208 Since then it has established many MPAs in its maritime zones as well as those of its Overseas Territories via the Blue Belt Programme, a UK Government initiative launched in 2016 to support marine protection in Overseas Territories.209 However, the National Oceanography Centre told us that while the Blue Belt Programme has established large MPAs in “less populated” Overseas Territories, those that “rely more on their marine space to generate income and that have not benefited from the Blue Belt Programme need support to responsibly and sustainably manage their blue economies”.210
164.Despite the efforts of individual countries to establish MPAs, we heard that they cover less than 1 per cent of the world’s oceans.211 There are international efforts to increase this coverage—in its post-2020 global biodiversity framework, the UN Convention on Biodiversity (CBD) called for 30 per cent of the world’s land and ocean areas to be conserved through systems of protected areas. This is a topic of discussion at the 15th Conference of the Parties to the convention (CBD COP15), which began in 2021 and will continue in 2022.212
165.The UK Government has established the Global Ocean Alliance, which aims to protect at least 30 per cent of the global ocean under MPAs or other area-based conservation measures by 2030 (the ‘30by30’ target).213 The Alliance currently has 71 members.
166.Greenpeace UK told us that while there is increasing support for the 30by30 target, “for the vast majority of the global oceans there is not yet a legal mechanism to create ocean sanctuaries and deliver effective protection from cumulative pressures” and “no specific framework … for the establishment of MPAs”.214 This is because the majority of the oceans are not in the jurisdiction of any one state. The Ocean Law Specialist Group agreed, noting that while UNCLOS obliges states to preserve and protect the marine environment, it currently “lacks mechanisms to protect fragile, biodiverse and ecologically important areas of the ocean”.215
167.Developing a network of MPAs in areas beyond national jurisdiction is one of the goals of a proposed implementing agreement to UNCLOS on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction to UNCLOS (‘BBNJ Agreement’). Areas beyond national jurisdiction refers to both the high seas and the ‘Area’—the deep seabed below.216
168.The agreement will also consider the related issues of the exploitation of marine genetic resources (MGRs) in areas beyond national jurisdiction. MGRs are materials from living organisms, such as plants, algae, animals or microbes, that have “actual or potential value”.217 Some states think that these resources should be considered the ‘common heritage of humankind’, so that all states can share their economic and social benefits.218 This principle is already applied to non-living resources in the Area, and the exploitation of these resources is regulated by the International Seabed Authority.219 However, other states are of the view that under the “freedom of the high seas’ principle, all states should be free to exploit living resources in the high seas and on the seabed without restriction. This is a key tension in the negotiations.220
169.The FCDO told us it “supports the conclusion of an ambitious BBNJ Agreement as soon as possible” and that such an agreement would be “necessary” to achieve the 30by30 target.221 Andrew Murdoch told us that despite delays in the negotiations, the UK has been engaged in intersessional work and been playing a “leading role in bringing together different delegations and different interest groups to help to achieve, outside the formal negotiation process, a consensus”.222 The Minister told us that one of the UK’s key goals in the run up to second session of CBD COP15 is to increase support for marine sustainability and finance, which is why it has recently launched the £500 million Blue Planet Fund.223
170.However, some witnesses were sceptical that the agreement would go far enough. The Pew Charitable Trusts told us that:
“Governments, including the UK, seem hesitant to vest the new Treaty with the full set of policy tools required for the challenge. A future Treaty needs to have the ability for its Parties to directly adopt Marine Protected Areas with legally binding associated management measures, rather than relying solely on the existing patchwork of bodies to conserve high seas biodiversity… Without this ability the Treaty … would only be able to designate “paper parks”, [which] risk[s] turning the implementation of [the 30by30] target into an accounting exercise with limited impact on the water.”224
They also noted that some Governments have been “pushing to exclude fisheries from the scope of the Treaty in its entirety”, which would be a “disaster”.225
171.The Government should continue to support the ongoing negotiations for the BBNJ Agreement and work to ensure that the obligations of states are not diluted. This will be vital for ensuring the 30by30 target can be met. The Government will need to engage with states which are reticent to expand the marine protected area network.
172.We commend the Government for the Blue Belt Programme, but it should provide further support for those Overseas Territories more reliant on marine resources for their economies, not least in the areas of control and enforcement.
132 Q 60 (Professor Clive Schofield). See also Q 60 (Professor Surabhi Ranganathan) and written evidence from the Ocean Law Specialist Group (UNC0042).
133 Q 60 (Professor Clive Schofield). See also written evidence from the Advisory Committee on Protection of the Sea (UNC0017).
134 Intergovernmental Panel on Climate Change, Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change, (Cambridge: Cambridge University Press, 2021): https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_Full_Report.pdf [accessed 7 February 2022]
136 Written evidence from Dr Philipp Kastner (UNC0029). See also written evidence from Hayley Keen and Charlotte Nichol (UNC0038) and the Ocean Law Specialist Group (UNC0042).
139 United Nations Convention on the Law of the Sea (UNCLOS), Article 121: https://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm [accessed 7 February 2022]
140 Unless it is located within the coastal state’s territorial sea.
141 Pacific Islands Forum, ‘Declaration on Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise’, (6 August 2021): https://www.forumsec.org/2021/08/11/declaration-on-preserving-maritime-zones-in-the-face-of-climate-change-related-sea-level-rise/ [accessed 7 February 2022]
142 Ibid.
147 Written evidence from the National Oceanography Centre (UNC0021). See also written evidence from Hayley Keen and Charlotte Nichol (UNC0038).
148 Written evidence from the National Oceanography Centre (UNC0021). Article 62(2) of the Vienna Convention on the Law of Treaties states that “A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.”
150 Written evidence from Hayley Keen and Charlotte Nichol (UNC0038). See also Q 62 (Professor Clive Schofield).
156 The World Bank, ‘Groundswell Part 2: Acting on Internal Climate Migration’ (2021): https://openknowledge.worldbank.org/handle/10986/36248 [accessed 7 February 2022]
157 Letter from Lord Goldsmith of Richmond Park to the Chair (11 January 2022): https://committees.parliament.uk/publications/8554/documents/86402/default/
159 Q 80 (Professor Douglas Guilfoyle). See also written evidence from the National Oceanography Centre (UNC0021).
162 United Nations Convention on the Law of the Sea (UNCLOS), Article 194(2): https://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm [accessed 7 February 2022]
168 United Nations Framework Convention on Climate Change, ‘The Paris Agreement’, https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement [accessed 7 February 2022]
177 Ibid.
178 Ibid.
183 Q 80 (Professor Douglas Guilfoyle). See also written evidence from Dr Massimo Lando and Dr Nicolo Ridi (UNC0041) and written evidence from Professor Douglas Guilfoyle and Professor Natalie Klein (UNC0001).
185 Ibid.
192 Intergovernmental Panel on Climate Change, Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change, (Cambridge: Cambridge University Press, 2021): https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_Full_Report.pdf [accessed 7 February 2022]
201 Food and Agriculture Organization of the United Nations, The State of World Fisheries and Aquaculture 2020, (2020): https://www.fao.org/documents/card/en/c/ca9229en [accessed 7 February 2022]
202 Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, The global assessment report on biodiversity and ecosystem services. Summary for policymakers, (2019): https://ipbes.net/sites/default/files/2020–02/ipbes_global_assessment_report_summary_for_policymakers_en.pdf [accessed 7 February 2022]
203 United Nations Convention on the Law of the Sea (UNCLOS), Article 192: https://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm [accessed 7 February 2022]
204 Written evidence from the Ocean Law Specialist Group (UNC0042). See also written evidence from Professor Robin Churchill and Dr Jacques Hartmann (UNC0011).
205 Written evidence from Professor Robin Churchill and Dr Jacques Hartmann (UNC0011). See also written evidence from Dr Hayley Roberts (UNC0027).
209 Examples of British Overseas Territories supported by the Blue Belt Programme include the Pitcairn Islands, St Helena, and the British Indian Ocean Territory. See more: Foreign, Commonwealth and Development Office, Centre for Environment, Fisheries and Aquaculture Science, Marine Management Organisation, Department for Environment, Food & Rural Affairs, ‘The Blue Belt Programme’ (17 November 2021): https://www.gov.uk/guidance/the-blue-belt-programme [accessed 7 February 2022]
211 Written evidence from Greenpeace UK (UNC0025) and the Pew Charitable Trusts (UNC0040). The 2019 Global Assessment Report on Biodiversity and Ecosystem Services suggests it is around 7% (p 15). Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, The global assessment report on biodiversity and ecosystem services. Summary for policymaker (2019): https://ipbes.net/sites/default/files/2020–02/ipbes_global_assessment_report_summary_for_policymakers_en.pdf [accessed 7 February 2022]
212 United Nations Convention on Biological Diversity, ‘First detailed draft of the new post-2020 global biodiversity framework’, (6 July 2021): https://www.cbd.int/article/draft-1-global-biodiversity-framework [accessed 7 February 2022]. See also written evidence from The One Ocean Hub (UNC0030).
213 Department for Environment, Food & Rural Affairs, ‘Global Ocean Alliance: 30by30 initiative’: https://www.gov.uk/government/topical-events/global-ocean-alliance-30by30-initiative/about [accessed 7 February 2022]
215 Written evidence from the Ocean Law Specialist Group (UNC0042). See also written evidence from Professor Robin Churchill and Dr Jacques Hartmann (UNC0011).
216 David S Berry, ‘Unity or Fragmentation in the Deep Blue: Choices in Institutional Design for Marine Biological Diversity in Areas Beyond National Jurisdiction’, Frontiers in Marine Science, vol. 8, 2021: https://www.frontiersin.org/articles/10.3389/fmars.2021.761552/full [accessed 7 February 2022]
217 United Nations Convention on Biological Diversity, Article 2: https://www.cbd.int/convention/articles/?a=cbd-02 [accessed 7 February 2022]
218 David S Berry, ‘Unity or Fragmentation in the Deep Blue: Choices in Institutional Design for Marine Biological Diversity in Areas Beyond National Jurisdiction’, Frontiers in Marine Science, vol. 8, 2021: https://www.frontiersin.org/articles/10.3389/fmars.2021.761552/full [accessed 7 February 2022]. See also written evidence from Dr Philipp Kastner (UNC0029).
219 Agreement Relating to the Implementation of Part XI of UNCLOS: https://www.un.org/depts/los/convention_agreements/texts/unclos/closindxAgree.htm [accessed 7 February 2022]