100
preservation of ecosystems”.
36
The Tribunal in the South China Sea case further
elaborated on this, concluding that the wording of Art. 194(5) would confirm that
Part XII UNCLOS is “not limited to measures aimed strictly at controlling marine
pollution”.
37
It is thus beyond controversy that the principles of environmental law
are applicable also to the management of marine living resources and nature
conservation in all areas of the oceans. Consequently, coastal States that, say, regulate fishing in their EEZ are legally bound to observe the precautionary approach.
As far as the elements of Art. 194(5) UNCLOS are concerned, it is interesting to
note that the Arbitral Tribunal in the South China Sea case substantiated the term
“ecosystem” by referring to the legal definition of this term contained in Art. 2 of
the Convention on Biological Diversity (CBD)
38
and to the Annexes of the
Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES).
39
Similarly, the ITLOS Seabed Disputes Chamber substantiated the precautionary approach by reference to Principle 15 of the Rio Declaration as well as
to the judgment of the International Court of Justice (ICJ) in the Pulp Mills case.
40
It can thus be said that the jurisprudence of the ITLOS and other competent international tribunals has increasingly been based on an integrated approach rather than a
zonal and treaty-specific approach. In its advisory opinion concerning
Responsibilities and Obligations of States with Respect to Activities in the Area, the
ITLOS referred to Art. 31(3)(c) of the Vienna Convention on the Law of Treaties
(VCLT)
41
as potential basis to justify such course of action,
42
but it is submitted that
it is a challenging task to clearly define how far such an integrative approach could
reach. This is particularly true in light of the fact that international courts and tribunals are, when rendering decisions involving environmental principles, naturally
bound to observe the jurisdictional limits arising from the treaty on which their
jurisdiction is based.
In this respect, Art. 288(1) UNCLOS states that “[a] court or tribunal referred to
in article 287 shall have jurisdiction over any dispute concerning the interpretation
or application of this Convention which is submitted to it in accordance with this
Part”. At the same time, Art. 293(1) UNCLOS obliges the competent court or tribunal to “apply this Convention and other rules of international law not incompatible
with this Convention”. The relationship between this rule, which governs the question of applicable law, on the one hand and the aforementioned rule codified in Art.
288(1) UNCLOS, which limits the jurisdiction of UNCLOS courts and tribunals to
36 PCA, Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18
March 2015, para. 538.
37 PCA, South China Sea Arbitration (Philippines v. China), Award, 12 July 2016, para. 945.
38 Convention on Biological Diversity of 5 June 1992, 1760 UNTS 79.
39 Convention on International Trade in Endangered Species of Wild Fauna and Flora of 3 March
1973, 993 UNTS 243.
40 ITLOS, Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory
Opinion, paras 125–135.
41 Ibidem, para. 135.
42 Ibidem.
A. Proelss
preservation of ecosystems”.
36
The Tribunal in the South China Sea case further
elaborated on this, concluding that the wording of Art. 194(5) would confirm that
Part XII UNCLOS is “not limited to measures aimed strictly at controlling marine
pollution”.
37
It is thus beyond controversy that the principles of environmental law
are applicable also to the management of marine living resources and nature
conservation in all areas of the oceans. Consequently, coastal States that, say, regulate fishing in their EEZ are legally bound to observe the precautionary approach.
As far as the elements of Art. 194(5) UNCLOS are concerned, it is interesting to
note that the Arbitral Tribunal in the South China Sea case substantiated the term
“ecosystem” by referring to the legal definition of this term contained in Art. 2 of
the Convention on Biological Diversity (CBD)
38
and to the Annexes of the
Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES).
39
Similarly, the ITLOS Seabed Disputes Chamber substantiated the precautionary approach by reference to Principle 15 of the Rio Declaration as well as
to the judgment of the International Court of Justice (ICJ) in the Pulp Mills case.
40
It can thus be said that the jurisprudence of the ITLOS and other competent international tribunals has increasingly been based on an integrated approach rather than a
zonal and treaty-specific approach. In its advisory opinion concerning
Responsibilities and Obligations of States with Respect to Activities in the Area, the
ITLOS referred to Art. 31(3)(c) of the Vienna Convention on the Law of Treaties
(VCLT)
41
as potential basis to justify such course of action,
42
but it is submitted that
it is a challenging task to clearly define how far such an integrative approach could
reach. This is particularly true in light of the fact that international courts and tribunals are, when rendering decisions involving environmental principles, naturally
bound to observe the jurisdictional limits arising from the treaty on which their
jurisdiction is based.
In this respect, Art. 288(1) UNCLOS states that “[a] court or tribunal referred to
in article 287 shall have jurisdiction over any dispute concerning the interpretation
or application of this Convention which is submitted to it in accordance with this
Part”. At the same time, Art. 293(1) UNCLOS obliges the competent court or tribunal to “apply this Convention and other rules of international law not incompatible
with this Convention”. The relationship between this rule, which governs the question of applicable law, on the one hand and the aforementioned rule codified in Art.
288(1) UNCLOS, which limits the jurisdiction of UNCLOS courts and tribunals to
36 PCA, Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18
March 2015, para. 538.
37 PCA, South China Sea Arbitration (Philippines v. China), Award, 12 July 2016, para. 945.
38 Convention on Biological Diversity of 5 June 1992, 1760 UNTS 79.
39 Convention on International Trade in Endangered Species of Wild Fauna and Flora of 3 March
1973, 993 UNTS 243.
40 ITLOS, Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory
Opinion, paras 125–135.
41 Ibidem, para. 135.
42 Ibidem.
A. Proelss