99
in the UNCLOS in express terms), the Seabed Disputes Chamber stated in the advisory opinion on Responsibilities and Obligations of States Sponsoring Persons and
Entities with Respect to Activities in the Area that “[t]he general provisions concerning the responsibilities and liability of the sponsoring State apply equally to all
sponsoring States, whether developing or developed”.
30
It has convincingly been
argued, though, that a closer reading of the advisory opinion indeed indicates the
willingness of the ITLOS to take into account existing differences in capabilities
between States.
31
In particular, the ITLOS accepted that “the requirements for complying with the obligation to apply the precautionary approach may be stricter for
the developed than for the developing sponsoring States”.
32
This statement demonstrates again that the precautionary approach/principle has been allocated central
importance by the ITLOS in the process of developing the obligations of States in
relation to the protection and preservation of the marine environment.
Concerning the scope of Part XII UNCLOS, the ITLOS decided in the Southern
Bluefish Tuna cases that “the conservation of the living resources of the sea is an
element in the protection and preservation of the marine environment”,
33
thus recognising the—previously contentious—applicability of the environmental principles enshrined in Part XII UNCLOS to the management of living resources, and not
only to the prevention of pollution. While the ITLOS did not expressly refer to a
legal basis for this finding, scholars have invoked Art. 194(5) UNCLOS, according
to which “[t]he measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of
depleted, threatened or endangered species and other forms of marine life”.
34
The
exact scope and nature of Art. 194(5) UNCLOS are subject to ongoing debate. It has
been argued that this provision gives a stamp of nature conservation to the
Convention by extending the scope of the principles and standards contained in Part
XII LOS Convention to other parts of the agreement, and that Part XII UNCLOS in
general and the environmental principles codified in Section 1 in particular must be
seen to be applicable also to the protection of species, stocks and habitats.
35
This
position was recently confirmed by the Arbitral Tribunals in the Chagos Marine
Protected Area and the South China Sea arbitrations. In the Chagos case, the
Tribunal (whose bench was, as in the case of the South China Sea arbitration, partly
composed of ITLOS judges), constituted in accordance with Art. 287 in connection
with Annex VII UNCLOS, held that Art. 194 would, against the background of para.
5, “not [be] limited to measures aimed strictly at controlling pollution”, but that it
would rather “extend[…] to measures focussed primarily on conservation and the
30 Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory
Opinion, para. 158.
31 Tanaka (2015), p. 51.
32 Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory
Opinion, para. 161.
33 Southern Bluefin Tuna Cases, Order, para. 70.
34 Proelss and Houghton (2015), pp. 232–233, with further references.
35 Wolfrum (1995), p. 1009, and Scovazzi (2004), p. 5; contra Roberts (2007), p. 32.
The Contribution of the ITLOS to Strengthening the Regime for the Protection…
in the UNCLOS in express terms), the Seabed Disputes Chamber stated in the advisory opinion on Responsibilities and Obligations of States Sponsoring Persons and
Entities with Respect to Activities in the Area that “[t]he general provisions concerning the responsibilities and liability of the sponsoring State apply equally to all
sponsoring States, whether developing or developed”.
30
It has convincingly been
argued, though, that a closer reading of the advisory opinion indeed indicates the
willingness of the ITLOS to take into account existing differences in capabilities
between States.
31
In particular, the ITLOS accepted that “the requirements for complying with the obligation to apply the precautionary approach may be stricter for
the developed than for the developing sponsoring States”.
32
This statement demonstrates again that the precautionary approach/principle has been allocated central
importance by the ITLOS in the process of developing the obligations of States in
relation to the protection and preservation of the marine environment.
Concerning the scope of Part XII UNCLOS, the ITLOS decided in the Southern
Bluefish Tuna cases that “the conservation of the living resources of the sea is an
element in the protection and preservation of the marine environment”,
33
thus recognising the—previously contentious—applicability of the environmental principles enshrined in Part XII UNCLOS to the management of living resources, and not
only to the prevention of pollution. While the ITLOS did not expressly refer to a
legal basis for this finding, scholars have invoked Art. 194(5) UNCLOS, according
to which “[t]he measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of
depleted, threatened or endangered species and other forms of marine life”.
34
The
exact scope and nature of Art. 194(5) UNCLOS are subject to ongoing debate. It has
been argued that this provision gives a stamp of nature conservation to the
Convention by extending the scope of the principles and standards contained in Part
XII LOS Convention to other parts of the agreement, and that Part XII UNCLOS in
general and the environmental principles codified in Section 1 in particular must be
seen to be applicable also to the protection of species, stocks and habitats.
35
This
position was recently confirmed by the Arbitral Tribunals in the Chagos Marine
Protected Area and the South China Sea arbitrations. In the Chagos case, the
Tribunal (whose bench was, as in the case of the South China Sea arbitration, partly
composed of ITLOS judges), constituted in accordance with Art. 287 in connection
with Annex VII UNCLOS, held that Art. 194 would, against the background of para.
5, “not [be] limited to measures aimed strictly at controlling pollution”, but that it
would rather “extend[…] to measures focussed primarily on conservation and the
30 Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory
Opinion, para. 158.
31 Tanaka (2015), p. 51.
32 Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory
Opinion, para. 161.
33 Southern Bluefin Tuna Cases, Order, para. 70.
34 Proelss and Houghton (2015), pp. 232–233, with further references.
35 Wolfrum (1995), p. 1009, and Scovazzi (2004), p. 5; contra Roberts (2007), p. 32.
The Contribution of the ITLOS to Strengthening the Regime for the Protection…