UNCLOS and the Climate Change Regime: Between Interpretative Flexibility and Structural Constraints
Introduction
Over the past four decades, international environmental law has developed at a swift pace in parallel with the growing acknowledgment and concern that humankind’s survival is dependent on the lifesustaining common resources of the planet. In 1972, hardly any international environmental agreements were concluded, and climate change remained a marginal concern within the international legal landscape. Prior to the establishment of the Intergovernmental Panel on Climate Change (IPCC) in 1988, the protection and management of marine living resources became a majorly acknowledged subject worldwide which resulted in the adoption and signature, in 1982, of the United Nations Convention on the Law of the Sea (UNCLOS).
Within this ambitious convention, it is generally agreed that Part XII of the UNCLOS is part of customary international law, while Part XV of the UNCLOS provides a unique dispute settlement framework at the international level. These make it one of the most important treaty not only for the protection of the marine environment, but also to potentially address climate change.
According to the IPCC, climate change is characterized as an alteration in the state of the average weather that can be identified by changes in the mean and/or the fluctuation of its properties and that persists for an extended duration of time. Despite the UNCLOS not explicitly mentioning climate change, it may prove to tackle pollution harming the marine environment in an efficient manner, thus encompassing, to a certain extent, climate change.
Nowadays, it is possible to conduct an assessment of the impacts of these agreements and to evaluate their efficiency. This blog article will explore the role that UNCLOS has in addressing climate change, and more specifically in addressing global mitigation, and assess its effectiveness in doing so. In order to assess whether the UNCLOS is efficient in addressing climate change, it is necessary to assess its legal effectiveness, which comprises the legal compliance with obligations laid in the treaty, its political effectiveness, which comprises the popularity in participation and State acceptance, and its environmental effectiveness, which encompasses the stringency of the commitments, the level of State participation, as well as compliance.
The methodology employed in this article is interdisciplinary, combining a thorough review of academic literature with the analysis of relevant case law. This approach will offer a well-rounded understanding of UNCLOS’s capacity to address climate change effectively.
To answer the central question—To what extent does the United Nations Convention on the Law of the Sea effectively address climate change?—this paper will proceed as follows. First, it will assess the extent to which UNCLOS encompasses the climate change regime. Second, it will examine the role of Part XII and Part XV of UNCLOS in addressing climate change. Finally, it will explore the limits of UNCLOS in effectively addressing climate change.
Overall, this paper seeks to provide a clear and logical approach to understanding the UNCLOS's effectiveness in addressing climate change in addition to its contributions to global mitigation efforts.
Part I: UNCLOS and Climate Change: disentangling a complex relationship
The UNCLOS is an international instrument which lays down a comprehensive framework of the law of the sea, and the oceans, at the international level. While there is a limited number of instruments at the international level to protect the oceans and the seas, the UNCLOS does not only represent an important step forward for the protection of the marine environment, but it also represents the first global response to this internationally emerging issue.
It did so by, inter alia, achieving an unprecedented political effectiveness, by gathering 168 State Parties, including 167 States and the European Union. This widespread participation has contributed to the recognition of Part XII of the Convention, which concerns the “Protection and Preservation of the Marine Environment,” as reflecting customary international law.
Accordingly, UNCLOS holds a dual significance: it is both a foundational instrument in the protection of the marine environment and a cornerstone in the development of international environmental law. However, the role of UNCLOS in addressing climate change remains ambiguous. To evaluate whether the Convention contributes meaningfully to climate change mitigation, it is essential to determine the extent to which it aligns with or integrates into the broader climate change legal regime.
Although international environmental law generally encompasses climate change issues and engages in global climate debates, UNCLOS does not explicitly address climate change. This omission can be explained by historical context: when UNCLOS was drafted and adopted, climate change had not yet emerged as a major international environmental concern. In fact, there is no explicit reference to climate change within the UNCLOS.
However, despite the fact that the UNCLOS does not directly address the climate issue, it does provide options for adaptation to, and mitigation of, climate change-related risks. In other words, the UNCLOS provides, to some extent, a process to both adjust and reduce the actual or expected climate and its effect, in order to moderate harm or exploit beneficial opportunities.
For instance, Articles 198 and 199 emphasize the importance of cooperation between states and international organizations in order to protect and preserve marine environments from pollution. Specifically, Article 198 requires that when a state becomes aware of imminent or actual damage caused by pollution, it must immediately notify other affected states as well as relevant international organizations. Article 199 then outlines how these entities should cooperate to eliminate any effects from such pollution and prevent further damage, including, inter alia, developing contingency plans for responding to incidents in which marine environments are threatened by pollutants.
Beyond these provisions, the UNCLOS can be construed and enforced in a way that captures climate change, specifically by utilizing its provisions on the protection and preservation of the marine environment (Part XII), on Marine Scientific Research (Part XIII), and on the settlement of disputes (Part XV). In other words, through the wordings, aims and goals of the UNCLOS, there is a possibility that certain provisions may encompass certain aspects related to climate change. For instance, while global sea levels are rising due to global warming, the UNCLOS could be enforced to tackle particular aspects of this issue. Indeed, according to Article 56 of the UNCLOS, coastal states have exclusive rights over natural resources within their EEZs up to 200 nautical miles from their coasts. This includes living organisms found on or beneath the seabed, which are important sources of food for many coastal communities around the world. As sea levels continue to rise due to climate change, these resources may become vulnerable and access to them may be hindered. Thus, by enforcing Article 56 and protecting these resources from exploitation by non-coastal states, the UNCLOS can help ensuring that coastal communities are able access these resources despite changing conditions caused by rising seas.
In conclusion, while the UNCLOS does not explicitly target climate change, it provides an important foundation for understanding how states can cooperate to mitigate and adapt to climate change-related risks. By interpreting and applying key sections of the Convention, states and legal practitioners can address specific climate-related issues, particularly those affecting the marine environment. The role of provisions on the protection and preservation of the marine environment within the UNCLOS in addressing climate change will be assessed in the following part of this article.
Part II: Role of Part XII of the UNCLOS in addressing climate change
Part XII of the UNCLOS is devoted to the issue of marine environmental protection, and provides a unifying framework to address it. The UNCLOS is widely recognized as the first global instrument to articulate a general obligation of states to protect and preserve the marine environment and to tackle all sources of pollution, including, in particular, pollution from land-based sources, seabed activities within or beyond national jurisdiction, and vessels, by dumping and from or through the atmosphere. With the introduction of these general obligations, the UNCLOS marks a significant shift in the approach to marine environmental protection, from a largely unregulated system to one of stringent pollution control.
In doing so, the UNCLOS recognizes the importance of a healthy marine environment as a matter of global and common concern. As previously argued in this article, while UNCLOS does not directly address climate change, it nonetheless contributes, at least indirectly, to the adaptation and mitigation of climate-related risks. In this light, this section examines the relevance and potential of Part XII in addressing the effects of climate change.
Examining the substance of of Part XII of the UNCLOS, it is of primary importance to start with the fact that Article 192 legally binds States to protect and preserve the marine environment. More specifically, it requires all states to cooperate in this endeavor, while also placing special obligations on flag states to ensure that vessels under their flags comply with international environmental regulations. When assessing its wording, Article 192 contains broad and generic terms, which could lead to an evolutionary interpretation, meaning that it could be interpreted to cover all contemporary threats to the marine environment, including recent threats.
Thus, it is possible to deduct that, in light of the immense threat posed to the marine environment by climate change, Article 192 could be interpreted as implying that States have a duty to take measures to reduce greenhouse gas emissions and protect the marine environment from the adverse effects of climate change in order to comply with their obligations as stated in the UNCLOS.
While it is possible to conclude that Article 192 may encompass the climate change regime, further requiring States to protect and preserve the marine environment, the question arises as to whether the same can be deducted for the other provisions of Part XII of the UNCLOS. A close examination of Part XII reveals that the majority of its articles are dedicated to the control, mitigation, and adaptation of “pollution of the marine environment.”
Notably, Article 194(1) provides that “States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source […]”. According to Article 1(1)(4) of the UNCLOS, pollution is broadly defined as “the introduction by man, directly or indirectly, of substances or energy into the marine environment […] likely to result in deleterious effects,” including harm to marine life, human health, and legitimate uses of the sea. The expansive language of this definition makes it plausible to argue that emissions of greenhouse gases, which contribute to ocean warming, acidification, and sea level rise, can qualify as marine pollution.
Scientific consensus, as expressed by the IPCC, confirms that human activity has unequivocally warmed the atmosphere, oceans, and land. Therefore, under Article 194, States are arguably under a legal obligation to take all requisite steps to mitigate, abate, and regulate the deleterious effects of climate change on the marine environment, and to ensure that activities under their jurisdiction or control are conducted in such a manner as not to cause environmental harm to other States. Article 194(5) of the UNCLOS further assesses that such measures include those necessary to safeguard and maintain rare or fragile ecosystems, as well as the habitats of depleted, threatened or endangered species and other forms of marine life.
In addition to Article 194, several other provisions in Part XII further reinforce the climate-relevant obligations of States. Article 195 prohibits States from transferring pollution or hazards from one area to another or from transforming one type of pollution into another. Article 196 requires States to forestall, reduce and control pollution of the marine environment resulting from the use of technologies under their control or jurisdiction. Article 200 mandates States to collaborate in order to advance studies on scientific research, interchange intelligence and facts concerning marine pollution. Article 201 further asserts that such a cooperation should be in accordance with pertinent scientific criteria for devising regulations regarding practices.
Crucially, Articles 207 and 212 require States to adopt laws and regulations to control pollution from land-based sources and atmospheric emissions, respectively. Given the scientific linkage between GHG emissions and the degradation of marine ecosystems, these provisions can be interpreted as requiring States to regulate emissions contributing to climate change.
In summary, it is reasonable to argue that Part XII of the UNCLOS can, to a certain extent, be interpreted as encompassing the climate change legal regime. Owing to the broad and inclusive language used, particularly in its definition of “pollution of the marine environment”, greenhouse gas emissions may fall within the scope of the Convention. In light of such a claim, articles of the UNCLOS dealing with marine pollution may therefore be inclined to require States to take measures to mitigate, abate and regulate the deleterious effects of climate change on the marine environment as well as safeguarding rare or fragile ecosystems. Consequently, Part XII of the UNCLOS holds significant potential in contributing to the international legal framework aimed at addressing climate changerelated challenges.
Part III: Adapting the UNCLOS dispute settlement to address climate change
Part XV of the UNCLOS mandates the utilization of pacific means for the resolution of disputes. Article 279 of Part XV establishes the general obligation to settle disagreements through peaceful means, while Article 281 outlines the protocol to be followed in the event that no agreement is reached between the parties after attempting to resolve the dispute amicably. Most notably, Part XV provides a platform for the resolution of maritime disputes through the establishment of the International Tribunal for the Law of the Sea (ITLOS) as well as an arbitral tribunal. These mechanisms create important avenues for resolving maritime conflicts that could otherwise escalate into international confrontations.
Given that the present legal system concerning the safeguarding of the oceans and their resources is largely based on the UNCLOS, and the increasing impacts of climate change nowadays in relation to the marine environment, it is worth considering whether its dispute resolution mechanisms could be adapted to address climate-related claims. Recent jurisprudence suggests that the jurisdictional barriers to such claims may not be as prohibitive as previously assumed, and that substantive duties pertaining to the safeguard and preservation of the marine environment offer potential for advancing claims related to climate change.
The recent advancements in the field suggest that the dispute resolution mechanisms provided by the UNCLOS may be more efficacious in settling disputes related to climate change and the safeguarding of the marine environment than was previously assumed. Despite not having been crafted with the intention of being utilized as a legal tool for addressing climate change, some of its provisions which regulate all forms of pollution harming the marine environment may be interpreted to encompass the causes and consequences of climate change.
Several potential claims could be brought under this framework. First, states may be held accountable for failing to take adequate measures to mitigate climate change, thereby breaching their obligations under UNCLOS to protect and preserve the marine environment, especially when greenhouse gas emissions are interpreted as a form of pollution under Part XII. Second, states could be challenged for not implementing sufficient measures to combat climate change, potentially violating Articles 192 and 194.46 This is particularly relevant in the context of emerging proposals for climate geoengineering, which some argue could inflict greater harm on the oceans than the climate change they aim to mitigate. Third, rising sea levels, an acknowledged consequence of climate change, raise complex legal issues regarding maritime entitlements. From a legal perspective, the change in sea levels is relevant in relation to UNCLOS provisions that refer to depth measurements + baselines from which all maritime zones are measured. Indeed, sea-level rise could affect the measurement of maritime zones in several ways. Low tide elevations, which are used as base-points under UNCLOS Article 13, may become fully submerged and thus unusable. Additionally, archipelagic baselines may be affected if land features are submerged, potentially leading to a state losing its right to claim archipelagic waters. Finally, an island entitled to a full complement of maritime zones under Article 121(2) may lose this status if it is no longer able to support human habitation or an economic life.
In conclusion, the dispute resolution mechanisms established under Part XV of UNCLOS offer a potentially valuable legal pathway for addressing disputes related to climate change. Whether concerning the loss of maritime entitlements due to sea-level rise or the adequacy of state responses to marine pollution caused by greenhouse gas emissions, these mechanisms may enable states and other actors to bring climate-related claims within an established and increasingly responsive legal framework.
Part IV: Limits of the UNCLOS in effectively addressing Climate Change
The UNCLOS is far from being an indisputable success for climate change. This section examines the critical weaknesses within the UNCLOS framework that undermine its effectiveness in contributing to global climate mitigation and adaptation efforts.
One of the most fundamental and formative issues preventing UNCLOS from achieving more positive outcomes in addressing climate change is its lack of compliance mechanisms, primarily due to the absence of non-compliance response procedures. Compliance may be defined as an actor’s behavior that conforms to a treaty’s explicit rule, which means that the UNCLOS is unable to encourage an actor to conform with the treaty’s rules. Indeed, the UNCLOS lacks binding non-compliance response mechanisms. Instead, it adopts a facilitative and enforcement-light approach, relying on provisions for technical assistance and domestic liability.
An example of this facilitative approach can be found in Article 61(5), which mandates that “[a]vailable scientific information […] [and] data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations.”
Similarly, Articles 231(1) and 231(2) outline a system of domestic liability for environmental harm, establishing that States shall be held liable under international law if they fail to protect the marine environment and must ensure compensation is available domestically.
Moreover, the absence of independent oversight or reporting obligations makes it difficult to detect non-compliance in the first place. These alternatives to non-compliance mechanisms reflect a fundamental lack of legal effectiveness and environmental effectiveness in nature, as parties are practically not punished if they were not to comply. In other words, the issue with the enforcement approach taken by UNCLOS is that it is weak, which therefore allows non-compliance to spread. Robin Churchill, Professor of International Law, argues that non-compliance is a key reason for UNCLOS's failure to achieve its objectives, recommending the use of countermeasures and the development of compliance mechanisms to promote adherence to UNCLOS obligations.
Indeed, due to the lack of non-compliance response mechanisms and the lack of sanctions, many State Parties have no remorse in not complying with undesired articles. For instance, 12 State Parties, including China, India and Saudi Arabia, decided not to comply with Article 33 of the UNCLOS and claimed jurisdiction in their contiguous zones. China has, in addition to this, also “refused to participate in a dispute-resolution requested by the Philippines” which a zone outside of China’s is still claimed to be theirs. Another instance of non-compliance is found in the Arctic, where Russia refused to participate in UNCLOS dispute resolution proceedings initiated by the Netherlands.
The fact that countries like China, Russia, India and others are publicly proclaiming their non-compliance with the UNCLOS shows a great weakness of the treaty as it does not backfire to them as it should. Sanctions and compliance mechanisms should be included within the UNCLOS, as the protection of the environment and its resources are not a matter of willingness or principles, but a matter of necessity and a matter of survival of the human race.
Furthermore, even if weaknesses are acknowledged, amending UNCLOS is extremely difficult. Its adoption was a monumental political success, achieved after nine years of negotiation among over 150 States with divergent interests. Today, reopening negotiations would require near-unanimous agreement, and many States would resist changes that might disrupt the delicate balance of rights and obligations established. Thus, the political inertia surrounding UNCLOS severely limits its capacity to evolve and address emerging challenges like climate change.
Secondly, the UNCLOS was not constructed as a climate change legal instrument. Indeed, as previously mentioned, the UNCLOS was negotiated and adopted when climate change was not yet the international community’s concern. Thus, issues such as sea-level rise were not elaborated on, nor expressly mentioned. In retrospect, the time interval between the adoption of the UNCLOS and the emergence of climate change as a pressing international concern has resulted in a conspicuous deficiency in international law concerning climate change matters, such as, inter alia, sea-level rise. Consequently, the UNCLOS contains shortcomings in its approach in tackling climate change issues.
When dealing with sea-level rise, for instance, the UNCLOS does not provide directives or regulations on the repercussions of climate change-induced sea level elevation on baselines, base-points, and the outer limits of maritime zones as determined by the UNCLOS and international law. Indeed, Article 5 of the UNCLOS does not explicitly mandate a periodic re-examination of the low-water line, nor does it offer explicit direction on the status of islands that have been lawfully granted all maritime zones but are later unable to sustain human habitation or their own economic activity, as stipulated in article 121(3). Therefore, while the UNCLOS is an important legal instrument in international law, it may present shortcomings in effectively addressing climate change on its own.
Thirdly, apart from not having adequate sanctions and response mechanisms to non-compliance, the UNCLOS does not necessitate any performance review obligations upon its State Parties. This, in addition with the lack of adequate sanctions, hinders both legal accountability and environmental effectiveness. It should be considered a mistake not to have included performance reviews, as it is more than necessary to receive detailed feedback of what has been achieved, how to achieve them in a more efficient and direct way and to understand which areas may need more attention where results would be low or would lack. Without systematic reporting or assessment of treaty implementation, it is difficult to identify non-compliance or evaluate whether environmental objectives are being met. By contrast, regulatory bodies such as the European Commission implement periodic evaluations under initiatives like the REFIT Programme, assessing effectiveness and ensuring compliance. UNCLOS lacks such mechanisms, making adaptive management and continuous improvement nearly impossible.
This invisibility fosters a culture of impunity, where states that quietly disregard obligations remain undetected. It also weakens trust among parties, reducing incentives for compliance. Therefore there needs to be responses to non-compliance, such as private and public enforcement. As compliance is often driven by reciprocal expectations, unchecked non-compliance by some states (e.g., India, Russia, or China) can discourage others from fulfilling their own obligations. To address this issue, international environmental law should prioritize the introduction of monitoring and reporting requirements, as well as private and public enforcement mechanisms. These tools are essential not only for detecting non-compliance but for enabling adaptive management and fostering collective action. In the absence of such instruments, the effectiveness of UNCLOS remains limited, and the global response to marine environmental degradation, including that driven by climate change, is significantly weakened.
Conclusion
As a conclusion, it is clear that there is a meaningful potential for cooperation between the UNCLOS and the international climate change legal regime. To answer the central question, the UNCLOS has the potential to address climate change through broad legal interpretation of certain of its provisions and definitions, thus permitting the UNCLOS to intercede in climate change-related matters.
In Part I of this article, it has been assessed that it is feasible to contend that the UNCLOS encompasses the climate change regime. It could do so in an effective manner through its elaborated obligations in Part XII, which would encompass the climate change legal regime by including greenhouse gas emissions as part of its definition of the pollution of the marine environment. Doing so would broaden, to a certain extent, the duties elaborated in Part XII to climate change.
Furthermore, Part II highlighted how Part XV of the Convention, through its dispute resolution mechanisms, could serve as a legal avenue for bringing climate change-related claims, including those concerning mitigation failures, sea-level rise, and pollution-related harm.
Nevertheless, in the final part of the article, it has also been identified that there are obstacles and shortcomings that may impede the UNCLOS from effectively addressing climate change-related issues and international environmental issues as well, consequently hindering its effectiveness in doing so.
In light of these findings, further research is warranted. Future studies should explore how the UNCLOS dispute settlement mechanisms could more effectively be used to address climate-related disputes and consider the feasibility of amending the Convention to explicitly incorporate climate change obligations. Ultimately, strengthening the synergy between UNCLOS and climate governance frameworks could contribute significantly to the global effort to protect the oceans and address the climate crisis.
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