96
that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment” (Art. 206
UNCLOS), imply that the Convention “reflects a precautionary spirit”.
11
Notwithstanding this, it must be kept in mind that the wording of the aforementioned UNCLOS provisions reflects the state of international environmental law of
the early 1980s, and that the Convention, in contrast to virtually all younger
multilateral environmental agreements (MEA), does not contain an express list of
principles, which is today often included in one of the introductory provisions of an
agreement concerned.
12
Taking furthermore into account that the principles mentioned above are, due to their abstract (or quasi-constitutional) nature, in need of
further development in order to be suitable for effective implementation, the potential relevance of the jurisprudence of the ITLOS is obvious.
3 Relevant Case-Law of the ITLOS
3.1 Validity of the Precautionary Approach
As will be demonstrated in the following, the ITLOS has strongly contributed to the
development of Part XII UNCLOS in general and the environmental principles visà- vis the protection of the marine environment in particular.
13
Inter alia, it implicitly
confirmed the conclusion drawn above in respect of the precautionary approach/
principle by stating in the Southern Bluefin Tuna cases that “the parties should in the
circumstances act with prudence and caution to ensure that the effective conservation measures are taken to prevent serious harm to the stock of southern Bluefin
tuna”.
14
In his separate opinion, Judge Laing substantiated the Tribunal’s decision
by stating that it would be, as far as the impact of the precautionary approach was
concerned, “pregnant with meaning”, and that it could not “be denied that UNCLOS
adopts a precautionary approach”.
15
Judge Shearer supported this view by emphasizing that “the measures ordered by the Tribunal are rightly based upon considerations deriving from a precautionary approach”.
16
The Seabed Disputes Chamber of
the ITLOS went even further by observing that:
11 Marr (2003), p. 52; see also Freestone (1999), p. 138; Sage-Fuller (2013), p. 68; Czybulka
(2017b), paras 9 and 19; Stephens (2017), para. 13.
12 See, e.g., Art. 2(1) and (2) of the 1992 Convention for the Protection of the Marine Environment
of the North-East Atlantic, 2354 UNTS 67.
13 For details see Mensah (1999), and Rashbrooke (2004).
14 ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional
Measures, Order, 27 August 1999, para. 77.
15 Southern Bluefin Tuna Cases, Separate Opinion of Judge Laing, paras 13, 17.
16 Ibidem, Separate Opinion of Judge Shearer, p. 327.
A. Proelss
that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment” (Art. 206
UNCLOS), imply that the Convention “reflects a precautionary spirit”.
11
Notwithstanding this, it must be kept in mind that the wording of the aforementioned UNCLOS provisions reflects the state of international environmental law of
the early 1980s, and that the Convention, in contrast to virtually all younger
multilateral environmental agreements (MEA), does not contain an express list of
principles, which is today often included in one of the introductory provisions of an
agreement concerned.
12
Taking furthermore into account that the principles mentioned above are, due to their abstract (or quasi-constitutional) nature, in need of
further development in order to be suitable for effective implementation, the potential relevance of the jurisprudence of the ITLOS is obvious.
3 Relevant Case-Law of the ITLOS
3.1 Validity of the Precautionary Approach
As will be demonstrated in the following, the ITLOS has strongly contributed to the
development of Part XII UNCLOS in general and the environmental principles visà- vis the protection of the marine environment in particular.
13
Inter alia, it implicitly
confirmed the conclusion drawn above in respect of the precautionary approach/
principle by stating in the Southern Bluefin Tuna cases that “the parties should in the
circumstances act with prudence and caution to ensure that the effective conservation measures are taken to prevent serious harm to the stock of southern Bluefin
tuna”.
14
In his separate opinion, Judge Laing substantiated the Tribunal’s decision
by stating that it would be, as far as the impact of the precautionary approach was
concerned, “pregnant with meaning”, and that it could not “be denied that UNCLOS
adopts a precautionary approach”.
15
Judge Shearer supported this view by emphasizing that “the measures ordered by the Tribunal are rightly based upon considerations deriving from a precautionary approach”.
16
The Seabed Disputes Chamber of
the ITLOS went even further by observing that:
11 Marr (2003), p. 52; see also Freestone (1999), p. 138; Sage-Fuller (2013), p. 68; Czybulka
(2017b), paras 9 and 19; Stephens (2017), para. 13.
12 See, e.g., Art. 2(1) and (2) of the 1992 Convention for the Protection of the Marine Environment
of the North-East Atlantic, 2354 UNTS 67.
13 For details see Mensah (1999), and Rashbrooke (2004).
14 ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional
Measures, Order, 27 August 1999, para. 77.
15 Southern Bluefin Tuna Cases, Separate Opinion of Judge Laing, paras 13, 17.
16 Ibidem, Separate Opinion of Judge Shearer, p. 327.
A. Proelss