98
means, to exercise best possible efforts, to do the utmost, to obtain this result”,
22
but
not an obligation of result.
23
That the obligation to ensure, an example for which the
Tribunal found in Art. 194(2) UNCLOS,
24
would only manifest itself in terms of a
due diligence obligation was further substantiated by reference to the judgment of
the ICJ in the Pulp Mills case and the ILC’s sets of articles concerning State responsibility on the one hand and Prevention of Transboundary Harm from Hazardous
Activities on the other.
25
The ITLOS also made it clear that due diligence is a variable concept, whose requirements may change over time in light of new scientific or
technological knowledge and in relation to the risks involved in the activity.
26
Taking
into account that the Tribunal had already emphasized the link between the due diligence obligation and the precautionary approach/principle in the 2011 Seabed
Disputes Chamber’s advisory opinion,
27
it must be concluded that the “duty to
ensure”, being a central specification of the general duty to cooperate embodied in
Part XII UNCLOS, is likewise conceptionally related to the precautionary approach/
principle. This conclusion seems particularly justified in consideration of the flexible character of the duty to ensure—a feature that facilitates a balancing of the relevant interests involved in a certain matter that can arguably be held to be required
by the precautionary approach/principle.
28
3.3 Scope of Environmental Principles
The other environmental principles codified in Part XII UNCLOS have received
less attention in the case-law of the ITLOS so far. In respect of the duty to conduct
an EIA, the Tribunal seems to have taken a lower threshold for when an assessment
is required than the one that is required by Art. 206 UNCLOS.
29
Concerning the
principle of common but differentiated responsibilities (a principle not mentioned
22 Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory
Opinion, para. 110.
23 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC),
para. 129.
24 Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory
Opinion, para. 113.
25 Ibidem, paras 111–116.
26 Ibidem, para. 117.
27 Ibidem, paras 131–132.
28 See PCA, Indus Waters Kishenganga Arbitration (Pakistan v. India), Final Award, 20 December
2013, para. 112; CJEU, Case T-13/99, Pfizer Animal Health SA, Judgment, 11 September 2002,
para. 161; CJEU, Case C-343/09, Afton Chemical Limited, Judgment, 8 July 2010, para. 56;
Communication on the Precautionary Principle, COM(2000) 1 final, 2 February 2000, 4; see also
Proelss (2010), pp. 71–86.
29 ITLOS, Case Concerning Land Reclamation in and around the Straits of Johor (Malaysia v.
Singapore), Provisional Measures, Order, 8 October 2003, paras 96 and 106. See also Churchill
(2015), p. 28.
A. Proelss
means, to exercise best possible efforts, to do the utmost, to obtain this result”,
22
but
not an obligation of result.
23
That the obligation to ensure, an example for which the
Tribunal found in Art. 194(2) UNCLOS,
24
would only manifest itself in terms of a
due diligence obligation was further substantiated by reference to the judgment of
the ICJ in the Pulp Mills case and the ILC’s sets of articles concerning State responsibility on the one hand and Prevention of Transboundary Harm from Hazardous
Activities on the other.
25
The ITLOS also made it clear that due diligence is a variable concept, whose requirements may change over time in light of new scientific or
technological knowledge and in relation to the risks involved in the activity.
26
Taking
into account that the Tribunal had already emphasized the link between the due diligence obligation and the precautionary approach/principle in the 2011 Seabed
Disputes Chamber’s advisory opinion,
27
it must be concluded that the “duty to
ensure”, being a central specification of the general duty to cooperate embodied in
Part XII UNCLOS, is likewise conceptionally related to the precautionary approach/
principle. This conclusion seems particularly justified in consideration of the flexible character of the duty to ensure—a feature that facilitates a balancing of the relevant interests involved in a certain matter that can arguably be held to be required
by the precautionary approach/principle.
28
3.3 Scope of Environmental Principles
The other environmental principles codified in Part XII UNCLOS have received
less attention in the case-law of the ITLOS so far. In respect of the duty to conduct
an EIA, the Tribunal seems to have taken a lower threshold for when an assessment
is required than the one that is required by Art. 206 UNCLOS.
29
Concerning the
principle of common but differentiated responsibilities (a principle not mentioned
22 Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory
Opinion, para. 110.
23 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC),
para. 129.
24 Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory
Opinion, para. 113.
25 Ibidem, paras 111–116.
26 Ibidem, para. 117.
27 Ibidem, paras 131–132.
28 See PCA, Indus Waters Kishenganga Arbitration (Pakistan v. India), Final Award, 20 December
2013, para. 112; CJEU, Case T-13/99, Pfizer Animal Health SA, Judgment, 11 September 2002,
para. 161; CJEU, Case C-343/09, Afton Chemical Limited, Judgment, 8 July 2010, para. 56;
Communication on the Precautionary Principle, COM(2000) 1 final, 2 February 2000, 4; see also
Proelss (2010), pp. 71–86.
29 ITLOS, Case Concerning Land Reclamation in and around the Straits of Johor (Malaysia v.
Singapore), Provisional Measures, Order, 8 October 2003, paras 96 and 106. See also Churchill
(2015), p. 28.
A. Proelss