104
referred to CITES, in particular to the fact that sea turtles are listed under its
Appendix I as species threatened with extinction and subject to the strictest level of
international controls on trade. It considered that “CITES is the subject of nearly
universal adherence, including by the Philippines and China, and in the Tribunal’s
view forms part of the general corpus of international law”—a clarification that is,
again, related to the rules of interpretation in terms of Art. 31(3) VCLT—, and concluded therefrom that the general obligations codified in Articles 192 and 194(5)
UNCLOS ought to be understood as containing a duty to prevent the harvest of
endangered species as well as the destruction of their habitats.
58
In contrast to the
cases discussed above where, in the view of the present author, the ITLOS as well
as an Annex VII tribunal exceeded the limits of their jurisdiction by relying on
“other rules of international law not incompatible with this Convention” in terms of
Art. 293(1) UNCLOS in order to exercise their jurisdiction, the Arbitral Tribunal in
the South China Sea Arbitration carefully refrained from exercising its competence
in relation to a violation of CITES, but only applied this agreement in order to reveal
the meaning of vague terms contained in UNCLOS provisions.
4 Assessment
This overview illustrates that the jurisprudence of the ITLOS and arbitration tribunals constituted pursuant to Annex VII UNCLOS is characterised by an increasingly
dynamic understanding of the Convention, which emphasises an integrated, rather
than a zonal, approach. As far as the protection and preservation of the marine environment is concerned, the Tribunal has increasingly interpreted the pertinent obligations of States in a dynamic way, thus treating the Convention in terms of a living
instrument, but it is subject for debate whether the ITLOS and Annex VII UNCLOS
Tribunals have always respected the functional limits of their jurisdiction. In this
respect, however, it should be noted that international court and tribunals have ever
since contributed to the formation and continuing development of international law,
and taking into account that the international legal system lacks a sufficiently developed separation of powers, it is arguably not easy to clearly determine the functional
limits of the jurisdiction of international judiciary bodies.
As far as the environmental principles are concerned, the ITLOS has substantiated Part XII UNCLOS by accepting the validity of, and assigning central importance to, the precautionary approach/principle under the regime of the Convention.
In line with the jurisprudence of the ICJ, it has refrained from interpreting the duties
codified in Part XII UNCLOS in terms of substantive obligations, i.e., obligations
of result; rather, the Tribunal has embarked on the path of a proceduralisation of the
duties concerned by holding that the parties to the Convention were subject to a due
diligence obligation. In light of the fact that the substantive content of the duty to
protect and preserve the marine environment ought to be brought in line with other
58 South China Sea Arbitration, Award, 12 July 2016, paras 956 and 959.
A. Proelss
referred to CITES, in particular to the fact that sea turtles are listed under its
Appendix I as species threatened with extinction and subject to the strictest level of
international controls on trade. It considered that “CITES is the subject of nearly
universal adherence, including by the Philippines and China, and in the Tribunal’s
view forms part of the general corpus of international law”—a clarification that is,
again, related to the rules of interpretation in terms of Art. 31(3) VCLT—, and concluded therefrom that the general obligations codified in Articles 192 and 194(5)
UNCLOS ought to be understood as containing a duty to prevent the harvest of
endangered species as well as the destruction of their habitats.
58
In contrast to the
cases discussed above where, in the view of the present author, the ITLOS as well
as an Annex VII tribunal exceeded the limits of their jurisdiction by relying on
“other rules of international law not incompatible with this Convention” in terms of
Art. 293(1) UNCLOS in order to exercise their jurisdiction, the Arbitral Tribunal in
the South China Sea Arbitration carefully refrained from exercising its competence
in relation to a violation of CITES, but only applied this agreement in order to reveal
the meaning of vague terms contained in UNCLOS provisions.
4 Assessment
This overview illustrates that the jurisprudence of the ITLOS and arbitration tribunals constituted pursuant to Annex VII UNCLOS is characterised by an increasingly
dynamic understanding of the Convention, which emphasises an integrated, rather
than a zonal, approach. As far as the protection and preservation of the marine environment is concerned, the Tribunal has increasingly interpreted the pertinent obligations of States in a dynamic way, thus treating the Convention in terms of a living
instrument, but it is subject for debate whether the ITLOS and Annex VII UNCLOS
Tribunals have always respected the functional limits of their jurisdiction. In this
respect, however, it should be noted that international court and tribunals have ever
since contributed to the formation and continuing development of international law,
and taking into account that the international legal system lacks a sufficiently developed separation of powers, it is arguably not easy to clearly determine the functional
limits of the jurisdiction of international judiciary bodies.
As far as the environmental principles are concerned, the ITLOS has substantiated Part XII UNCLOS by accepting the validity of, and assigning central importance to, the precautionary approach/principle under the regime of the Convention.
In line with the jurisprudence of the ICJ, it has refrained from interpreting the duties
codified in Part XII UNCLOS in terms of substantive obligations, i.e., obligations
of result; rather, the Tribunal has embarked on the path of a proceduralisation of the
duties concerned by holding that the parties to the Convention were subject to a due
diligence obligation. In light of the fact that the substantive content of the duty to
protect and preserve the marine environment ought to be brought in line with other
58 South China Sea Arbitration, Award, 12 July 2016, paras 956 and 959.
A. Proelss