{"id":1393,"date":"2024-04-02T15:23:23","date_gmt":"2024-04-02T13:23:23","guid":{"rendered":"https:\/\/site.uit.no\/nclos\/?p=1393"},"modified":"2024-04-02T15:28:15","modified_gmt":"2024-04-02T13:28:15","slug":"the-relationship-between-the-un-convention-on-the-law-of-the-sea-unclos-and-the-un-climate-change-regime-what-role-for-article-237-unclos","status":"publish","type":"post","link":"https:\/\/site.uit.no\/nclos\/2024\/04\/02\/the-relationship-between-the-un-convention-on-the-law-of-the-sea-unclos-and-the-un-climate-change-regime-what-role-for-article-237-unclos\/","title":{"rendered":"The Relationship between the UN Convention on the Law of the Sea (UNCLOS) and the UN Climate Change Regime: What Role for Article 237 UNCLOS?"},"content":{"rendered":"\n

By<\/strong>: Philipp P Nickels (Research Fellow and PhD Candidate, NCLOS, Faculty of Law, UiT)<\/p>\n\n\n\n

PDF: <\/strong>https:\/\/site.uit.no\/nclos\/wp-content\/uploads\/sites\/179\/2024\/04\/The-Relationship-between-the-LOSC-and-the-UN-Climate-Change-Regime-NCLOS-blog.pdf<\/a><\/p>\n\n\n\n

Matters commented on<\/strong>: request for an advisory opinion, ITLOS, COSIS, inter-regime relationships<\/p>\n\n\n\n

1 Introduction*<\/sup><\/h4>\n\n\n\n

On 12 December 2022, the Commission of Small Island States on Climate Change and International Law<\/a> (COSIS) submitted a request to the International Tribunal for the Law of the Sea (ITLOS) to render an advisory opinion. In its request, COSIS asked ITLOS to clarify \u2018the specific obligations of State Parties to the United Nations Convention on the Law of the Sea<\/a> [UNCLOS] [\u2026] to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change\u2019 as well as \u2018to protect and preserve the marine environment in relation to climate change impacts\u2019 more broadly (Request for an Advisory Opinion<\/a>).<\/p>\n\n\n\n\n\n\n\n

In addition to COSIS, many State Parties of UNCLOS as well as intergovernmental organisations submitted written statements to ITLOS and participated in the oral hearings, which took place in September 2023. Besides reflecting on jurisdictional questions, the different submissions elaborated on the applicability and content of as well as the interplay between the relevant provisions of UNCLOS. <\/em>Although UNCLOS does not mention climate change, most submissions supported the view that greenhouse gas (GHG) emissions constitute pollution of the marine environment, as defined in Article 1(1)(4) UNCLOS, and thus the applicability of Article 194 UNCLOS as well as of more specific provisions dealing with pollution, including Article 212 UNCLOS on atmospheric pollution. Only a few State Parties of UNCLOS rejected the idea that GHG emissions qualify as pollution of the marine environment (see, e.g., China, Oral Statement, p. 28<\/a>; India, Oral Statement, p. 17<\/a>). Most submissions also supported the view that general environmental obligations in Part XII of UNCLOS beyond the regulation of pollution, such as Article 192 UNCLOS, which stipulates the obligation \u2018to protect and preserve the marine environment\u2019, are applicable in the context of climate change and its adverse effects on the marine environment.<\/p>\n\n\n\n

The majority of the submissions, which accepted the applicability of general environmental obligations as well as pollution-specific provisions, maintained that UNCLOS does not provide for more demanding obligations than the different agreements of the UN climate change regime, such as the UN Framework Convention on Climate Change<\/a> (UNFCCC) and the Paris Agreement<\/a>. A few States did, however, indicate some openness that UNCLOS could provide for more demanding obligations. For instance, Guatemala observed that \u2018[u]nlike some other participants, Guatemala takes no issue with the suggestion that UNCLOS may impose obligations that go beyond those contained in the Framework Convention and the Paris Agreement\u2019 (Guatemala, Oral Statement, p. 11<\/a>).<\/a><\/p>\n\n\n\n

The question of how UNCLOS relates to the UN climate change regime is thus not only of academic interest from a law of treaties perspective but has practical implications for the substantive standard UNCLOS stipulates for its State Parties. Indeed, Guatemala suggested that \u2018the precise normative relationship between UNCLOS, the Framework Convention and the Paris Agreement will be at the centre stage of the Tribunal\u2019s advisory opinion\u2019 (ibid<\/a>), asking:<\/p>\n\n\n\n

\n

Is it a relationship of lex specialis<\/em> or is it a relationship of complementarity and mutual supportiveness? Does UNCLOS impose obligations that go beyond the obligations under the climate change regime? Or is it sufficient for States to comply with their obligations under the Framework Convention and the Paris Agreement to fulfil their obligations under Part XII of UNCLOS? (ibid<\/a>, emphasis in original)<\/p>\n<\/blockquote>\n\n\n\n

The advisory proceedings offer the opportunity for ITLOS to clarify the relationship between UNCLOS and the UN climate change regime, which has fittingly been described as \u2018not clear-cut, despite its obvious importance\u2019 (Boyle, p. 480<\/a>). This task includes reflecting on the role of Article 237 UNCLOS, which regulates per its title the relationship between Part XII of UNCLOS \u2013 the part of UNCLOS dedicated to the protection and preservation of the marine environment \u2013 and \u2018obligations under other conventions on the protection and preservation of the marine environment\u2019.<\/p>\n\n\n\n

After briefly outlining how the relationship between UNCLOS and the UN climate change regime has been conceptualised during the advisory proceedings as well as in the existing literature (Section 2), this blog post establishes that Article 237 UNCLOS can be construed as being applicable to the UN climate change regime, which has thus far been rejected in the literature (Section 3.1). This is significant as it refutes, inter alia<\/em>, the argument that the lex specialis<\/em> rule determines the relationship between UNCLOS and the UN climate change regime in a strict hierarchical manner, on which basis it has been suggested that UNCLOS cannot stipulate more demanding obligations. Based on this, the remainder of this blog post reflects on the different functions of Article 237 UNCLOS, i.e., as a provision encouraging the systemic integration of Part XII of UNCLOS within its normative context (Section 3.2) and as a conflict clause, which could potentially safeguard a minimum level of environmental protection of Part XII of UNCLOS vis-\u00e0-vis<\/em> the UN climate change regime (Section 3.3).<\/p>\n\n\n\n

2 Different Takes on the Relationship between UNCLOS and the UN Climate Change Regime<\/h4>\n\n\n\n

Some submissions and oral statements did suggest that the UN climate change regime indeed qualifies as lex specialis <\/em>and\/or as lex posterior vis-\u00e0-vis<\/em> UNCLOS(e.g., Saudi Arabia, Oral Statement, p. 27<\/a>). In contrast, COSIS submitted that\u2018the relationship between UNCLOS and the global climate regime is [\u2026] one of complementarity and mutual supportiveness\u2019, based on the argument that \u2018[s]uch a relationship cannot be and should not be framed in exclusionary terms\u2019 (COSIS, Oral Statement, p. 30<\/a>). In addition to emphasising that UNCLOS and the UN climate change regime ought to be interpreted in a systemic manner pursuant to Article 31(3)(c) Vienna Convention on the Law of Treaties<\/a> (VCLT), many submissions suggested that the UN climate change regime could inform the standard of pollution-specific provisions through the system of the rules of references used in Part XII of UNCLOS (see, e.g., COSIS, Written Statement, para. 50<\/a>; United Kingdom, Written Statement, p. 29, p. 30, fn 156<\/a>). Various submissions also commented on the role of Article 237 UNCLOS for the relationship between Part XII and the UN climate change regime, which is placed as the last provision of Part XII of UNCLOS and structured into two paragraphs. Its first paragraph stipulates that:<\/p>\n\n\n\n

\n

1.            The provisions of this Part are without prejudice to the specific obligations assumed by States under special conventions and agreements concluded previously which relate to the protection and preservation of the marine environment and to agreements which may be concluded in furtherance of the general principles set forth in this Convention.<\/p>\n<\/blockquote>\n\n\n\n

The second paragraph subsequently qualifies this without prejudice clause by providing that:<\/p>\n\n\n\n

\n

2.            Specific obligations assumed by States under special conventions, with respect to the protection and preservation of the marine environment, should be carried out in a manner consistent with the general principles and objectives of this Convention.<\/p>\n<\/blockquote>\n\n\n\n

For instance, Canada went as far as suggesting that \u2018Article 237 [UNCLOS] is central to answering the questions submitted to the Tribunal as it governs the relationship between Part XII and other agreements\u2019 (Canada, Written Statement, para. 18<\/a>). According to Canada, Article 237 UNCLOS \u2018establish[es] an inter-relationship between the obligations under Part XII and those under the more specialized agreements, whereby those more specialized obligations continue as long as they do not conflict with the Convention\u2019 (ibid, para. 20<\/a>). This function of Article 237 UNCLOS was \u2018further reinforced by Article 311 [UNCLOS], which governs the relationship with other agreements in relation to the Convention as a whole\u2019 (ibid, para. 21<\/a>). In contrast, Saudi Arabia observed that \u2018[s]ome written statements make much of [A]rticle 237 and [A]rticle 311 of UNCLOS, which address the interaction between UNCLOS and external rules and standards\u2019, but opined that \u2018[w]hile no doubt important in their own right, these provisions say nothing about obligations under UNCLOS itself\u2019 (Saudi Arabia, Oral Statement, p. 29<\/a>).<\/p>\n\n\n\n

The views expressed in the different submissions and oral statements largely correspond to how the existing literature as well as the International Law Commission (ILC) has conceptualised the relationship between UNCLOS and the UN climate change regime. Thus far, the relationship has been approached through the concept of mutual supportiveness (ILC, para. 62<\/a>) as well as through the lens of lex specialis<\/em> (see, e.g., Boyle, p. 94<\/a>) and, based on the latter, it has been suggested that UNCLOS cannot stipulate more demanding obligations than the UN climate change regime. Scott, on the other hand, argued specifically in the context of ocean acidification that if the obligations under the UNFCCC are inadequate, \u2018it would seem anachronistic to argue that compliance with those standards constitutes \u201cdue diligence\u201d\u2019 (Scott, p. 402<\/a>). One important difference is, however, that the relevance of Article 237 UNCLOS has thus far been rejected in the literature. As one of the few, who approached the question of how UNCLOS relates to the UN climate change regime by asking what role the conflict clauses of UNCLOS would play, Redgwell opined that Article 237 UNCLOS was inapplicable and suggested instead that Article 311(2) UNCLOS \u2013 the general coordination clause in UNCLOS \u2013 could be applicable (Redgwell, pp. 454 \u2013 455<\/a>; see also, Roland-Holst, p. 261<\/a>).<\/p>\n\n\n\n

3 What Role for Article 237 UNCLOS?<\/h4>\n\n\n\n
3.1 Applicability of Article 237 UNCLOS<\/h5>\n\n\n\n

Specific conflict clauses enjoy priority in application in comparison to the more general conflict rules in the VCLT, such as the lex specialis<\/em> rule (Wolfrum and Matz-L\u00fcck, p. 122<\/a>), since the \u2018relationship between two treaties is first and foremost determined by the terms of those treaties\u2019 (Boyle, p. 133<\/a>; see also, Matz-L\u00fcck, para. 3<\/a>). This can be supported in light of the South China Sea Arbitration<\/em>, where the Tribunal discussed Articles 293 and 311 UNCLOS. The latter is the general conflict clause of UNCLOS, while the former deals with the \u2018applicable law\u2019 under the compulsory dispute settlement system established by UNCLOS. Importantly, the Tribunal observed that Articles 293 and 311 UNCLOS \u2018mirror the general rules of international law concerning the interaction of different bodies of law, which provide that the intent of the [P]arties to a convention will control its relationship with other instruments\u2019 (South China Sea Arbitration<\/em>, para. 237<\/a>). Conceptualising the relationship between UNCLOS and the UN climate change regime through the lens of the lex specialis<\/em> and\/or posterior<\/em> rule thus only appears convincing if specific conflict clauses are inapplicable.<\/p>\n\n\n\n

The absence of any conflict clauses in the instruments of the UN climate change regime, such as in the Paris Agreement (Redgwell, p. 454<\/a>), begs the question of the scope of and interaction between Articles 237 and 311 UNCLOS. Article 237 UNCLOS, which is specifically placed in Part XII of UNCLOS, qualifies as lex specialis<\/em> vis-\u00e0-vis <\/em>Article 311 UNCLOS and thus enjoys priority in application (Matz-L\u00fcck, p. 2017<\/a>; Czybulka, p. 1597<\/a>). This status as lex specialis<\/em> is further explicitly safeguarded by Article 311 (5) UNCLOS (Matz-L\u00fcck, p. 2017<\/a>; Czybulka, p. 1597<\/a>), which means that Article 237 UNCLOS has the effect of \u2018excluding the 45 articles of Part XII [\u2026] from [the] application\u2019 of Article 311 UNCLOS (Franckx, p. 220, fn 6<\/a>).<\/p>\n\n\n\n

The applicability of Article 237 UNCLOS to the instruments of the UN climate change regime has thus far been rejected based on the argument that these instruments do not qualify as \u2018\u201cagreements relating to the protection and preservation of the marine environment\u201d under Article 237 [UNCLOS]\u2019 (Redgwell, p. 454<\/a>; see also, Roland-Holst, p. 261<\/a>). In contrast, a broader approach to the applicability of Article 237 UNCLOS was advocated for by various State Parties of UNCLOS. For instance, Italy argued that \u2018it does not seem relevant that the agreements\u2019 within the scope of Article 237 UNCLOS \u2018have, as their main object and purpose, the protection and preservation of the marine environment\u2019 (Italy, Oral Statement, p. 20<\/a>). Rather, Italy suggested that \u2018[i]n order to make the coordination clause [in Article 237 UNCLOS] operational, it is only required that States Parties to UNCLOS assume \u201cspecific obligations [under these agreements] with respect to the protection and preservation of the marine environment\u201d\u2019 (ibid<\/a>) and submitted that \u2018both the UNFCCC and the Paris Agreement may be qualified as agreements \u201cconcluded in furtherance of the general principles set forth\u201d in the Convention, within the meaning of [A]rticle 237(1) of UNCLOS\u2019 (ibid, p. 21<\/a>).<\/p>\n\n\n\n

The UNFCCC, the Kyoto Protocol<\/a> (KP) and the Paris Agreement are clearly not agreements concluded exclusively for the protection and preservation of the marine environment. They rather have \u2018an atmospheric focus\u2019 (Stephens, p. 444<\/a>). It appears, however, questionable to construe the applicability of Article 237 UNCLOS as being limited to agreements dealing exclusively with the protection and preservation of the marine environment. Although the title of Article 237 UNCLOS does indeed refer to \u2018obligations under other conventions on the protection and preservation of the marine environment\u2019, the without prejudice clause in Article 237(1) UNCLOS states its applicability in relation to future agreements more broadly to \u2018agreements concluded in furtherance of the general principles<\/em>\u2019 (emphasis added) of UNCLOS. The reference to the general principles<\/em> of UNCLOS in Article 237 (1) UNCLOS \u2013 a term left undefined in UNCLOS (Matz-L\u00fcck, p. 2015<\/a>) \u2013 can arguably be interpreted as extending its general applicability to agreements, which are concluded in furtherance of multiple principles of UNCLOS. While the protection and preservation of the marine environment can safely be considered as one of the general principles of UNCLOS, as indicated by UNCLOS\u2019 Preamble (UNCLOS, Preamble, Recital 4; Matz-L\u00fcck, p. 2017<\/a>; Czybulka, p. 1600<\/a>), this would imply that Article 237 UNCLOS\u2019 general applicability is not limited to agreements, which are exclusively concluded for the purposes of environmental protection.<\/p>\n\n\n\n

An interpretation, which extends the general applicability of Article 237 UNCLOS to multi-purpose agreements, corresponds furthermore to the purpose of Article 237 UNCLOS, which can be described as determining \u2018the relationship between the obligations of Part XII [\u2026] and specific obligations<\/em> assumed by States under existing and future treaties or agreements dealing with the same topic\u2019 (Nordquist et al, p. 423<\/a>, emphasis added; see also, Czybulka, p. 1597<\/a>). Limiting its applicability to agreements, which deals exclusively with the protection and preservation of the marine environment, would run counter to the very purpose of Article 237 UNCLOS. The more convincing view is thus that Article 237 UNCLOS can be interpreted as being applicable to the UNFCCC as well as the Paris Agreement. That said, the broad general applicability of Article 237 UNLCOS, including to agreements not exclusively concerned with the protection and preservation of the marine environment, needs to be distinguished from the scope of its without prejudice clause. The latter is generally limited to Part XII, which deals with the protection and preservation of the marine environment (Nordquist et al, p. 425<\/a>; Czybulka, p. 1599<\/a>). This means that Article 311(2) UNCLOS could very well determine the relationship between the UN climate change regime and other parts of UNCLOS beyond Part XII, such as Part XIV of UNCLOS, which deals with the transfer of marine technology.<\/p>\n\n\n\n

3.2 Article 237 UNCLOS as a Provision Encouraging Systemic Integration<\/h5>\n\n\n\n

As such, Article 237 UNCLOS functions \u2018as a conflict rule\u2019 (Czybulka, p. 1597<\/a>; Kojima, p. 172<\/a>). In the South China Sea Arbitration,<\/em> the Tribunal referred to Article 237 UNCLOS, however, in the context of the interpretation of Article 192 UNCLOS. That is, the Tribunal noted that \u2018[t]he content of the general obligation in Article 192 is [\u2026] detailed in the subsequent provisions of Part XII, including Article 194, as well as by reference to specific obligations set out in other international agreements, as envisaged in Article 237 of the Convention\u2019 (South China Sea Arbitration<\/em>, Merits, para. 942<\/a>). Thereby, Article 237 UNCLOS was conceptualised \u2018as a provision positively linking the general obligations of Part XII of UNCLOS and specific obligations under other international agreements that are previously or subsequently concluded\u2019 (Kojima, p. 172<\/a>).<\/p>\n\n\n\n

Interpreting Article 237 UNCLOS as endorsing systemic interpretation is in line with \u2018[t]he principle of harmonization\u2019 (ILC, para. 14(4)<\/a>), emphasis omitted), according to which\u2018[i]t is a generally accepted principle that when several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations\u2019 (ibid<\/a>). The principle of harmonization and the role of Article 237 UNCLOS of encouraging the systemic interpretation of Part XII \u2013 as envisaged in Article 31(3)(c) VCLT \u2013 has been pointed to by COSIS (COSIS, Written Statement, paras. 351, 407 \u2013 408<\/a>) and various State Parties of UNCLOS. For instance, Mozambique suggested that Article 237 UNCLOS constitutes an \u2018express recognition [\u2026] that UNCLOS is not a self-contained regime, but that its obligations may be concretized through the development of more specific rules in other instruments\u2019 and, based on this, suggested that \u2018this [is] an explicit recognition that UNCLOS may be interpreted by way of renvoi<\/em> to rules external to it and this includes the UNFCC [sic] and the Paris Agreement\u2019 (Mozambique, Oral Statement, pp. 9 \u2013 10,<\/a> emphasis in original). Timor-Leste similarly stressed that this provision \u2018reflects the understanding that States will continue to develop<\/em> the rules of international environmental law\u2019 as well as that \u2018UNCLOS is intended to apply in harmony with the specific environmental rights and obligations of States rather than undermining or superseding them\u2019 (Timor-Leste, Oral Statement, p. 8<\/a>, emphasis in original).<\/p>\n\n\n\n

Another type of inter-regime relationships beyond systemic interpretation between UNCLOS and the UN climate change regime arises, as mentioned above, in the context of the system of the rules of references, whereby \u2018external rules [\u2026] are indirectly incorporated into the regime of the LOSC [UNCLOS]\u2019 (Proelss, p. 60<\/a>). This system is, in principle, \u2018an important mechanism that ensures an appropriate response to contemporary threats to the marine environment through the interplay of UNCLOS with other sources of rules\u2019 (Harrison, p. 38<\/a>). While Article 237 UNCLOS does not specifically deal with the system of the rules of references, its general openness also embraces this system. For instance, Nordquist et al stressed specifically in terms of Article 212(3) UNCLOS that \u2018[A]rticle 237 [UNCLOS] provides an opening for linking this provision with other aspects of environmental control of the atmosphere\u2019 (Nordquist et al, p. 211<\/a>). In the context of land-based and atmospheric pollution, the rules of references are, however, of relatively little help, since Articles 207 and 212 UNCLOS merely require the \u2018taking into account\u2019 of generally accepted rules and standards, which falls short of stipulating an obligation to do so (Boyle, p. 354<\/a>).<\/p>\n\n\n\n

Clarifying what is required substantively under the UN climate change regime, which could inform the standard of UNCLOS by way of systemic interpretation and\/or through the system of the rules of references, is far from clear given \u2018the deliberately open nature of the obligations under the Paris Agreement\u2019 (Roland-Holst, p. 263<\/a>). An additional limitation of the system of the rules of references but also of systemic interpretation is that the normative ambition of the external standards relied upon would constitute the upper limit for the substantive standard of UNCLOS. Importantly, the Paris Agreement\u2019s \u2018open-ended and evolutionary\u2019 approach means that \u2018\u201cgoing beyond\u201d\u2019 this agreement is, in principle, not necessarily needed (Boyle, p. 472<\/a>). That said, \u2018[t]he Paris Agreement could work, or it might fail entirely\u2019 (ibid, p. 471<\/a>) and it is precisely against this backdrop that the question arises whether UNCLOS could potentially stipulate more demanding obligations. This question invites the following reflections on Article 237 UNCLOS as a conflict clause.<\/p>\n\n\n\n

3.3 Article 237 UNCLOS and its Function as a Conflict Clause<\/h5>\n\n\n\n

A discussion of what exactly constitutes a normative conflict in international law is beyond the scope of this post (for a discussion, see, Matz-L\u00fcck, paras. 5 \u2013 6<\/a>). Instead, it is sufficient to note that the operation of the without prejudice clause in Article 237(1) UNCLOS is triggered by the criterion of furtherance<\/em>. That is, Article 237 (1) UNCLOS gives priority in application to future agreements within its scope of application if they further<\/em> the general principles of UNCLOS (Sadat-Akhavi, p. 131<\/a>).<\/p>\n\n\n\n

Interpreting what exactly the criterion of furtherance<\/em> entails is, however, a difficult exercise. Italy noted, for instance, that \u2018rather than stating that other treaties \u201cwhich relate to the protection and preservation of marine environment\u201d always and in all cases prevail\u2019, Article 237 UNCLOS \u2018regulates the possible modalities of their application\u2019 (Italy, Written Statement, para. 13<\/a>). Based on this, Italy suggested that \u2018with specific reference to subsequent agreements, [A]rticle 237, paragraph 1 [UNCLOS] requires that they be \u201cconcluded in furtherance of the general principles set forth\u201d in UNCLOS\u2019, which \u2018allows [for] a constant opening of UNCLOS to any special convention and agreement that is likely to better protect and preserve the marine environment\u2019 (ibid<\/a>). That said, Italy also argued that \u2018Article 237 [UNCLOS] contains a \u201ctreaty coordination clause\u201d\u2019, which \u2018establishes a double relationship of compatibility: the provisions of Part XII are without prejudice to those treaties, but the latter are to be applied in a manner consistent with UNCLOS\u2019 (ibid<\/a>).<\/p>\n\n\n\n

While the notion of \u2018furtherance\u2019 is not defined in Article 237 (1) UNCLOS, its ordinary meaning can be understood as \u2018the process of helping something (or someone) to develop successfully\u2019 (Czybulka, p. 1600<\/a>). Despite the absence of any reference to compatibility or consistency in Article 237 (1) UNCLOS (Nordquist et al, p. 425<\/a>), it has been suggested that pursuant to Article 237 (1) UNCLOS, \u2018all future agreements that are compatible with UNCLOS are allowed and in the case of incompatibility, the obligations stemming from UNCLOS prevail\u2019 (Fitzmaurice and Elias, p. 335<\/a>) as well as that Article 237(1) UNCLOS \u2018preserves future agreements to the extent that they are not inconsistent with the general principles of the Convention\u2019 (Sadat-Akhavi, p. 132<\/a>).<\/p>\n\n\n\n

More convincing and in line with the ordinary meaning is the interpretation that the notion of \u2018furtherance\u2019 in Article 237 (1) UNCLOS \u2018underlines the framework- and \u201cminimum-standard\u201d character of the Convention in its Part XII\u2019 (Czybulka, p. 1597<\/a>). The fact that Article 311(2) UNCLOS uses the wording \u2018compatible\u2019 provides for a further contextual argument that Article 237(1) UNCLOS does with its requirement of furtherance indeed not require compatibility and rather fulfils a function as a \u2018benchmark\u2019 for future environmental obligations in the form of the minimum-standard of Part XII (ibid, p. 1599<\/a>). If external obligations meet the minimum-standard of Part XII, Article 237 (1) UNCLOS \u2018accords priority in their application\u2019 vis-\u00e0-vis<\/em> the obligations contained in Part XII (Nordquist et al, p. 425<\/a>). If this is not the case, the provisions of Part XII will arguably prejudice them (Sadat-Akhavi, pp. 131 \u2013 132<\/a>).<\/p>\n\n\n\n

The criterion of consistency<\/em> is, however, mentioned in Article 237 (2) UNCLOS, which provides that environmental obligations \u2018should be carried out in a manner consistent with the general principles and objectives\u2019 of UNCLOS. The interpretation of Article 237 (2) UNCLOS is not straightforward, since it only uses \u2018should\u2019. This has led to some discussion as to whether Article 237 (2) UNCLOS thereby merely provides for a recommendation and not for an obligation (see, Sadat-Akhavi, pp. 132 \u2013 133<\/a>; Fitzmaurice and Elias, pp. 335 \u2013 336<\/a>; Harrison, p. 38<\/a>). A deeper dive into the interpretation of Article 237(2) UNCLOS is beyond the scope of this blog post (see, e.g., Sadat-Akhavi, p. 132<\/a>, Jakobsen, p. 276<\/a>). Instead, the following comments regarding the without prejudice clause in Article 237(1) UNCLOS are noteworthy.<\/p>\n\n\n\n

First, through the criterion of furtherance, <\/em>Article237(1) UNCLOS conceptualises the relationship between the obligations in Part XII of UNCLOS and external obligations relating to the protection and preservation of the marine environment dynamically, i.e., without establishing a strict hierarchy. Article 237 UNCLOS can thus be described as a conflict clause, which claims and\/or grants priority in a \u2018\u201cconditional\u201d\u2019 manner (Sadat-Akhavi, p. 89<\/a>). This is a distinguishing feature in comparison to many conflict clauses, which often \u2018are geared at binary (\u201ceither\u2013or\u201d) solutions, leading to the application of one no\u00adrm over a potentially conflicting other norm stemming from a different source or regime\u2019 (Peters, p. 682<\/a>). Article 237 UNCLOS is hence one example of what Peters labelled \u2018\u201cmore favora[u]ble provision\u201d-clauses\u2019, with another one specifically mentioned by her being Article 2(4) Cartagena Protocol on Biosafety to the Convention on Biological Diversity<\/a> (ibid<\/a>). Such clauses establish a \u2018type of \u201crelative\u201d priority\u2019, which Peters rightly described as \u2018laudable because it allows for a race to the top\u2019 (Peters, p. 684<\/a>).<\/p>\n\n\n\n

While much hinges on the interpretation of furtherance<\/em>, there is arguably, as mentioned above, room to interpret this criterion as safeguarding a minimum-standard. In order to argue that \u2018compliance with the Paris Agreement is not necessarily enough to satisfy the requirements of [\u2026] Part XII\u2019 of UNCLOS, it is not necessary to maintain \u2018that the two agreements are unrelated\u2019 (Boyle, p. 471<\/a>). Rather, Article 237(1) UNCLOS and its criterion of furtherance<\/em> would allow for a dynamic relationship between the UN climate change regime and Part XII of UNCLOS. In so doing, Article 237 UNCLOS could contribute to what Young referred to in a general context as \u2018[t]he productive friction of \u201cregime interaction\u201d\u2019, which \u2018may lead to a more responsive and effective international legal system than the sum of the constituent regimes\u2019 (Young, p. 11<\/a>). Conflict clauses, such as Article 237 UNCLOS, which do not establish a static hierarchy, are thus generally preferable. They do come, however, with their own interpretative challenges (Matz-L\u00fcck, para. 13<\/a>). Indeed, what precisely is meant by the notion of furtherance<\/em> is subject to interpretation.<\/p>\n\n\n\n

Second,even if one agreed with the interpretation that the criterion of furtherance<\/em> does safeguard a minimum-standard vis-\u00e0-vis<\/em> external obligations, the relevance of such a standard would depend on the substantive standard of the obligations in Part XII of UNCLOS. Determining the substantive standard of UNCLOS is, however, complicated, not least because UNCLOS does not mention climate change, which means that \u2018it is a matter of interpretation [\u2026] of existing duties\u2019 (Voigt, p. 383<\/a>; see also, Jakobsen et al, p. 387<\/a>).<\/p>\n\n\n\n

Particularly problematic is furthermore that Article 212 UNCLOS on atmospheric pollution and Article 207 UNCLOS (if one were to interpret this provision as being applicable to GHG emissions from land-based sources) \u2018neither establish global standards nor require States to comply with any such standards adopted\u2019 (Scott, p. 170<\/a>; for a clarification of the scope of Articles 207 and 212 UNCLOS, see, Scott, pp. 394, 398<\/a>). This is why scholars have pointed to the potential role of general environmental obligations, such as Article 192 UNCLOS (Scott, pp. 401 \u2013 402<\/a>; Roland-Holst, p. 6<\/a>). The appeal here is that Article 192 UNCLOS, read in conjunction with Article 194(5) UNCLOS, has been substantiated in the South China Sea Arbitration, <\/em>where the Tribunal held that \u2018Article 192 [UNCLOS] [\u2026] entails the positive obligation to take active measures to protect and preserve the marine environment\u2019 as well as, \u2018by logical implication, [\u2026] the negative obligation not to degrade the marine environment\u2019 (South China Sea Arbitration<\/em>, Merits, para. 941<\/a>).<\/p>\n\n\n\n

In this decision, the Tribunal relied, inter alia<\/em>, on the finding in the Chagos Marine Protected Area Arbitration <\/em>that\u2018Part XII of the Convention [is not] [\u2026] limited to measures aimed at controlling marine pollution\u2019 (Chagos Marine Protected Area Arbitration<\/em>, para. 320<\/a>) as well as on the Convention on Biodiversity<\/a> (CBD) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora<\/a> (CITIES) to substantiate the obligations contained in Articles 192 and 194(5) UNCLOS (South China Sea Arbitration<\/em>, Merits, paras. 945, 956<\/a>). For instance, based on the observation that \u2018CITES [\u2026] forms part of the general corpus of international law that informs the content of Article 192 and 194(5) [UNCLOS]\u2019, the Tribunal held that \u2018Article 192 [UNCLOS] includes a due diligence obligation to prevent the harvesting of species that are recognised internationally as being at risk of extinction and requiring international protection\u2019 (ibid, para. 956<\/a>).<\/p>\n\n\n\n

In South China Sea Arbitration,<\/em> the Tribunal substantiated general obligations in Part XII, however, in relation to threats of the marine environment, such as the harvesting of endangered species, which do not simultaneously fall squarely into the category of the regulation of pollution of the marine environment. This is the case in the current advisory proceedings, which means that any argument that general environmental obligations of Part XII might go beyond what pollution-specific provisions require, entails reflecting on the interplay between the different dimensions of the regulation of pollution of the marine environment and the protection and preservation of the marine environment more broadly. Notably, even though \u2018the regulation of specific forms of pollution of the marine environment has to be viewed in [the] context of [\u2026] general obligations [\u2026] it is subject to discussion to what extent general due diligence obligations can be instrumentalized to address specific forms of pollution\u2019 (Matz-L\u00fcck and van Doorn, pp. 185 \u2013 186<\/a>).<\/p>\n\n\n\n

It is thus unsurprising that the question of the interplay between Articles 192 and 194 UNCLOS has been commented on by various submissions. The European Union observed, for instance, that \u2018Article 192 of UNCLOS constitutes the primary and general obligation of Part XII, setting the basis for all the obligations further specified in its following provisions\u2019 (European Union, Written Statement, para. 11<\/a>) but maintained that \u2018Article 194 of UNCLOS goes beyond the obligation under Article 192, laying down further and more precise obligations for States, mostly as regards the prevention, reduction and control of pollution of the marine environment\u2019 (ibid, para. 41<\/a>). In contrast, New Zealand suggested that \u2018Article 194 addresses one aspect of the protection and preservation of the marine environment, namely protection from the effects of pollution\u2019, whereas \u2018Article 192 encompasses a broader requirement\u2019 (New Zealand, Written Statement, para. 33<\/a>). Based on this, New Zealand argued that \u2018[c]ompliance with Article 194 of the Convention is a necessary condition for compliance with Article 192\u2019, whereas \u2018compliance with Article 194 would not alone be sufficient in and of itself to constitute compliance with Article 192\u2019 (ibid<\/a>). It follows that clarifying the interplay between Articles 192 and 194 UNCLOS as well as between Article 194 UNCLOS and more specific provisions on pollution, such as Article 212 UNCLOS, is a crucial aspect of reflecting on the substantive standard of UNCLOS in the context of climate change and ocean acidification. It is also important for the role of Article 237 UNCLOS, since the operation of this provision, as a conflict clause, is dependent on the substantive standard of Part XII, in addition to the question of how the criterion of furtherance<\/em> is interpreted in the first place.<\/p>\n\n\n\n

Third, a final question regarding the role of Article 237 UNCLOS, as a conflict clause, relates to the legal limits of conflict clauses claiming priority over future treaties. Importantly, the incorporation of such clauses indicate \u2018the importance of the subject-matter\u2019, which means that they are \u2018most likely to be found in treaties establishing institutions or treaty regimes considered to be of fundamental value for the parties involved\u2019 (Matz-L\u00fcck, para. 11<\/a>). This is certainly true for UNCLOS, which has not only been labelled as \u2018the constitution of the oceans\u2019 (Koh<\/a>) but also more specifically as \u2018the overarching framework for international law relating to the protection of the marine environment\u2019 (Churchill et al, p. 603<\/a>). While Articles 237 and 311 UNCLOS play an integral part in safeguarding this role of UNCLOS (ibid, pp. 603 \u2013 604<\/a>), the limits of conflict clauses claiming priority over later treaties have been debated in the literature. Indeed, \u2018[t]he greatest difficulty with such clauses is that they attempt to restrict States\u2019 sovereignty in their treaty-making capacity in future negotiations\u2019 (Wolfrum and Matz, p. 123<\/a>).<\/p>\n\n\n\n

4 Conclusion<\/h4>\n\n\n\n

The ongoing advisory proceedings offer the opportunity for ITLOS to clarify the relationship between UNCLOS and the UN climate change regime. While the applicability of Article 237 UNCLOS to the UN climate change regime has thus far been rejected in the literature, this blog post developed the argument that this provision can convincingly be construed as being applicable. This in turn means that neither Article 311(2) UNCLOS nor the lex specialis<\/em> rule but rather Article 237 UNCLOS determines the relationship between Part XII of UNCLOS and the UN climate change regime dynamically, i.e., without establishing a strict hierarchy. Crucially, Article 237 UNCLOS does not say anything about the substantive standard of the obligations in Part XII of UNCLOS and their interplay, yet this provision can, in light of the South China Sea Arbitration<\/em>, be interpreted as encouraging the systemic integration of Part XII of UNCLOS within its normative context, which includes the UN climate change regime. Depending on how the criterion of furtherance<\/em> is interpreted and subject to questions relating to the legal limits of conflict clauses claiming (conditional) priority over future treaties, Article 237 UNCLOS could furthermore be construed as safeguarding a minimum level of environmental protection of Part XII of UNCLOS vis-\u00e0-vis<\/em> the UN climate change regime. If accepted, it might not only be <\/strong>\u2018anachronistic\u2019 (Scott, p. 402<\/a>) but potentially also unconvincing in light of Article 237 UNCLOS and its criterion of furtherance<\/em> to maintain that Part XII of UNCLOS cannot go beyond what is required under the UN climate change regime, so long as the latter proves incapable to protect and preserve the marine environment.<\/p>\n\n\n\n

* This blog post is based on the ongoing PhD project of the present author with the working title \u2018Bridging the Land Sea Interface: A Study of the Problem-solving Capacity of International Law to Mitigate Ocean Acidification\u2019 and earlier unpublished work.<\/p>\n\n\n\n

Acknowledgements<\/strong>:<\/p>\n\n\n\n

The author would like to thank James Harrison (University of Edinburgh) and Vito De Lucia (UiT \u2013 The Arctic University of Norway) for their comments on an earlier draft of this blog post.<\/p>\n\n\n\n

This post may be cited as: Philipp P Nickels, \u201cThe Relationship between the UN Convention on the Law of the Sea (UNCLOS) and the UN Climate Change Regime: What Role for Article 237 UNCLOS?\u201d (2 April 2024), online: https:\/\/site.uit.no\/nclos\/?p=1393<\/a><\/p>\n\n\n\n

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