103
rights expressly granted in the Treaty, this would no longer be “interpretation or application” of the Treaty but the substitution of customary law in place of the Treaty.
52
Therefore, while certainly to be welcomed in view of the need to make international environmental law more effective, the integrative approach pursued by the
ITLOS and Annex VII Tribunals in their recent case-law is, again, subject to legal
limits arising from the applicable environmental agreements as well as from general
international law. It should be noted, however, that the functional limits of its jurisdiction have not kept the Arbitral Tribunal in the Indus Waters Kishenganga
Arbitration from indirectly illustrating its specific understanding of the precautionary approach as a normative balancing tool by referring to the need to determine
“the balance between acceptable environmental change and other priorities, or to
permit environmental considerations to override the balance of other rights and
obligations”.
53
Notwithstanding this, the better view is that Art. 293(1) UNCLOS
cannot be invoked to support an expansion of the jurisdictional limits of the dispute
settlement mechanisms foreseen by the Convention, and that it is mandatory to differentiate in a clear-cut manner between the categories of jurisdiction on the one
hand and applicable law on the other.
Against this background, it remains to be discussed in which situations a court or
tribunal that has jurisdiction under Part XV UNCLOS is entitled, or rather obliged,
to apply “other rules of international law not incompatible with this Convention” in
terms of Art. 293(1) UNCLOS. Taking into account that Art. 288(1) UNCLOS limits the jurisdiction of the adjudicating body to disputes concerning the application
or interpretation of the Convention, this can, with the exception of the rules of interpretation codified in Articles 31–33 VCLT which undeniably fall within the scope
of Art. 293(1) UNCLOS,
54
only be the case if and to the extent to which the court or
tribunal refers to other rules of international law in order to substantiate, or inform
respectively, the meaning of the terms of the Convention. An example is the M/V
“Saiga” case, where the ITLOS referred to the 1989 Convention for the Prohibition
of Fishing with Long Driftnets in the South Pacific in order to approach the meaning
of the term “bunkering of fishing vessels”.
55
A similar approach was taken by the
Annex VII Tribunal in the South China Sea Arbitration, which applied the CBD in
order to interpret the term “ecosystem”.
56
Perhaps going beyond the rules of interpretation and moving forward to actual application,
57
the Arbitral Tribunal then
52 Indus Waters Kishenganga Arbitration, Final Award, para. 112 (original italics).
53 Ibidem.
54 See ITLOS, Responsibilities and Obligations of States with Respect to Activities in the Area,
Advisory Opinion, para. 57.
55 M/V “Saiga”, Judgment, para. 57.
56 South China Sea Arbitration, para. 945.
57 In its award on jurisdiction and admissibility, the Annex VII Tribunal cumulatively referred to
Art. 31(3) Vienna Convention on the Law of Treaties and Art. 293(1) UNCLOS; see PCA, South
China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility, 29 October
2015, para. 282. South China Sea Arbitration (Philippines v. China), Award, 12 July 2016, para.
945.
The Contribution of the ITLOS to Strengthening the Regime for the Protection…
rights expressly granted in the Treaty, this would no longer be “interpretation or application” of the Treaty but the substitution of customary law in place of the Treaty.
52
Therefore, while certainly to be welcomed in view of the need to make international environmental law more effective, the integrative approach pursued by the
ITLOS and Annex VII Tribunals in their recent case-law is, again, subject to legal
limits arising from the applicable environmental agreements as well as from general
international law. It should be noted, however, that the functional limits of its jurisdiction have not kept the Arbitral Tribunal in the Indus Waters Kishenganga
Arbitration from indirectly illustrating its specific understanding of the precautionary approach as a normative balancing tool by referring to the need to determine
“the balance between acceptable environmental change and other priorities, or to
permit environmental considerations to override the balance of other rights and
obligations”.
53
Notwithstanding this, the better view is that Art. 293(1) UNCLOS
cannot be invoked to support an expansion of the jurisdictional limits of the dispute
settlement mechanisms foreseen by the Convention, and that it is mandatory to differentiate in a clear-cut manner between the categories of jurisdiction on the one
hand and applicable law on the other.
Against this background, it remains to be discussed in which situations a court or
tribunal that has jurisdiction under Part XV UNCLOS is entitled, or rather obliged,
to apply “other rules of international law not incompatible with this Convention” in
terms of Art. 293(1) UNCLOS. Taking into account that Art. 288(1) UNCLOS limits the jurisdiction of the adjudicating body to disputes concerning the application
or interpretation of the Convention, this can, with the exception of the rules of interpretation codified in Articles 31–33 VCLT which undeniably fall within the scope
of Art. 293(1) UNCLOS,
54
only be the case if and to the extent to which the court or
tribunal refers to other rules of international law in order to substantiate, or inform
respectively, the meaning of the terms of the Convention. An example is the M/V
“Saiga” case, where the ITLOS referred to the 1989 Convention for the Prohibition
of Fishing with Long Driftnets in the South Pacific in order to approach the meaning
of the term “bunkering of fishing vessels”.
55
A similar approach was taken by the
Annex VII Tribunal in the South China Sea Arbitration, which applied the CBD in
order to interpret the term “ecosystem”.
56
Perhaps going beyond the rules of interpretation and moving forward to actual application,
57
the Arbitral Tribunal then
52 Indus Waters Kishenganga Arbitration, Final Award, para. 112 (original italics).
53 Ibidem.
54 See ITLOS, Responsibilities and Obligations of States with Respect to Activities in the Area,
Advisory Opinion, para. 57.
55 M/V “Saiga”, Judgment, para. 57.
56 South China Sea Arbitration, para. 945.
57 In its award on jurisdiction and admissibility, the Annex VII Tribunal cumulatively referred to
Art. 31(3) Vienna Convention on the Law of Treaties and Art. 293(1) UNCLOS; see PCA, South
China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility, 29 October
2015, para. 282. South China Sea Arbitration (Philippines v. China), Award, 12 July 2016, para.
945.
The Contribution of the ITLOS to Strengthening the Regime for the Protection…