97
[T]he precautionary approach has been incorporated into a growing number of international
treaties and other instruments, many of which reflect the formulation of Principle 15 of the
Rio Declaration. In the view of the Chamber, this has initiated a trend towards making this
approach part of customary international law.
17
It concluded that the due diligence obligation of sponsoring States applicable
under Part XI UNCLOS would be closely linked to the precautionary approach, and
that this approach, notwithstanding the silence of the relevant UNCLOS provisions,
would thus have to be respected by the States concerned.
18
3.2 Duty to Cooperate
Furthermore, the ITLOS substantiated the general norms concerning the protection
and conservation of the marine environment laid down in Part XII UNCLOS by
construing from them a duty of the parties to the Convention to cooperate. In its
judgment in the MOX Plant case, it referred to this duty to cooperate in terms of “a
fundamental principle in the prevention of pollution of the marine environment
under Part XII of the Convention and general international law”,
19
and took the view
that “prudence and caution require that Ireland and the United Kingdom cooperate
in exchanging information concerning risks or effects of the operation of the MOX
plant and in devising ways to deal with them, as appropriate”.
20
It thereby made it
clear that it regarded the duty to cooperate, as far as its legal basis is concerned, as
being conceptionally related to the precautionary approach/principle.
With regard to the particular problem of illegal, unreported and unregulated fishing (IUU fishing), the Tribunal determined in its advisory opinion submitted on the
request of the Sub-Regional Fisheries Commission (SRFC) that flag States would
be, based on the general obligation to protect and conserve the marine environment,
obligated to take the necessary measures to ensure that in areas of territorial competence of a regional fisheries management organisation ships flying their flag comply
with the protection and preservation measures adopted by the members of the
organisation.
21
In the view of the Tribunal, this duty to ensure constitutes an obligation of conduct, i.e., a due diligence obligation, “an obligation to deploy adequate
17 ITLOS, Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory
Opinion, 1 February 2011, para. 135.
18 Ibidem, paras 131–132.
19 ITLOS, MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order, 3 December
2001, para. 82.
20 Ibidem, para. 84; see also ITLOS, Dispute concerning Delimitation of the Maritime Boundary
between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana v. Côte d’Ivoire), Provisional
Measures, Order of the Special Chamber, 25 April 2015, para. 73.
21 ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission
(SRFC), Advisory Opinion, 2 April 2015, para. 136; see also ibidem, para. 124.
The Contribution of the ITLOS to Strengthening the Regime for the Protection…
[T]he precautionary approach has been incorporated into a growing number of international
treaties and other instruments, many of which reflect the formulation of Principle 15 of the
Rio Declaration. In the view of the Chamber, this has initiated a trend towards making this
approach part of customary international law.
17
It concluded that the due diligence obligation of sponsoring States applicable
under Part XI UNCLOS would be closely linked to the precautionary approach, and
that this approach, notwithstanding the silence of the relevant UNCLOS provisions,
would thus have to be respected by the States concerned.
18
3.2 Duty to Cooperate
Furthermore, the ITLOS substantiated the general norms concerning the protection
and conservation of the marine environment laid down in Part XII UNCLOS by
construing from them a duty of the parties to the Convention to cooperate. In its
judgment in the MOX Plant case, it referred to this duty to cooperate in terms of “a
fundamental principle in the prevention of pollution of the marine environment
under Part XII of the Convention and general international law”,
19
and took the view
that “prudence and caution require that Ireland and the United Kingdom cooperate
in exchanging information concerning risks or effects of the operation of the MOX
plant and in devising ways to deal with them, as appropriate”.
20
It thereby made it
clear that it regarded the duty to cooperate, as far as its legal basis is concerned, as
being conceptionally related to the precautionary approach/principle.
With regard to the particular problem of illegal, unreported and unregulated fishing (IUU fishing), the Tribunal determined in its advisory opinion submitted on the
request of the Sub-Regional Fisheries Commission (SRFC) that flag States would
be, based on the general obligation to protect and conserve the marine environment,
obligated to take the necessary measures to ensure that in areas of territorial competence of a regional fisheries management organisation ships flying their flag comply
with the protection and preservation measures adopted by the members of the
organisation.
21
In the view of the Tribunal, this duty to ensure constitutes an obligation of conduct, i.e., a due diligence obligation, “an obligation to deploy adequate
17 ITLOS, Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory
Opinion, 1 February 2011, para. 135.
18 Ibidem, paras 131–132.
19 ITLOS, MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order, 3 December
2001, para. 82.
20 Ibidem, para. 84; see also ITLOS, Dispute concerning Delimitation of the Maritime Boundary
between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana v. Côte d’Ivoire), Provisional
Measures, Order of the Special Chamber, 25 April 2015, para. 73.
21 ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission
(SRFC), Advisory Opinion, 2 April 2015, para. 136; see also ibidem, para. 124.
The Contribution of the ITLOS to Strengthening the Regime for the Protection…