105
values protected under the Convention, it is submitted that this approach constitutes
the most promising way to operationalize Part XII UNCLOS. The alleged existence
of a general duty to cooperate was referred to by the ITLOS as the point of origin
concerning its further line of argument, but it should be noted that this duty is not
clearly set out in the UNCLOS in express terms. Against this background, it has
been stated that “[i]t may thus be significant that in its judgments the Tribunal has
referred to co-operation both under the LOSC and in general international law,
implying that in this respect the Convention has been given a broader reading than
its express terms by themselves would suggest”.
59
Indeed, it seems justified to state
that the case-law of the ITLOS concerning the environmental principles implements
the “idea that treaties can have a dynamic or living interpretation”,
60
thereby providing for a modern and at the same time sufficiently flexible implementation of the
duty to protect and preserve the marine environment by the parties to the Convention.
While it is true that the first decisions addressing the scope and content of Part XII
UNCLOS, all of them rendered in the context of requests for provisional measures,
lacked explanations,
61
it is submitted that the ITLOS has taken the opportunity to
produce some relief in this respect in the more recent advisory opinions, which
arguably go beyond a mere interpretation of the Convention in accordance with
international law as it stood in 1982 when the Convention was adopted.
The risk of fragmentation arising from the fact that the merits of environmental
cases have in most instances been addressed by arbitral tribunals established on the
basis of Annex VII UNCLOS
62
has arguably so far not materialized. The recent
case-law of Annex VII tribunals is rather characterized by a striking coincidence
with the approach pursued by the ITLOS—a fact that can only to some extent be
explained by referring to the partly personal identity of the judges and arbitrators. It
seems that all competent courts and tribunals, including the ICJ (which has arguably
taken a more dynamic approach to the interpretation of international law in its
recent case-law than in the past), agree in the need to meet the challenge of fragmentation by way of interpreting the Convention in a coherent manner. This conclusion can be attested by pointing to the numerous mutual references that can be
found in the jurisprudence of the competent courts and tribunals. While the interrelationship between the relevant decisions is certainly in need of further examination, the overall record concerning the impact of the case-law of international courts
and tribunals in general and the ITLOS in particular on the development of the
environmental principles must thus be regarded as positive.
59 Boyle (2007), p. 379.
60 Ibidem.
61 Rashbrooke (2004), p. 534.
62 Boyle (2007), p. 380.
The Contribution of the ITLOS to Strengthening the Regime for the Protection…
values protected under the Convention, it is submitted that this approach constitutes
the most promising way to operationalize Part XII UNCLOS. The alleged existence
of a general duty to cooperate was referred to by the ITLOS as the point of origin
concerning its further line of argument, but it should be noted that this duty is not
clearly set out in the UNCLOS in express terms. Against this background, it has
been stated that “[i]t may thus be significant that in its judgments the Tribunal has
referred to co-operation both under the LOSC and in general international law,
implying that in this respect the Convention has been given a broader reading than
its express terms by themselves would suggest”.
59
Indeed, it seems justified to state
that the case-law of the ITLOS concerning the environmental principles implements
the “idea that treaties can have a dynamic or living interpretation”,
60
thereby providing for a modern and at the same time sufficiently flexible implementation of the
duty to protect and preserve the marine environment by the parties to the Convention.
While it is true that the first decisions addressing the scope and content of Part XII
UNCLOS, all of them rendered in the context of requests for provisional measures,
lacked explanations,
61
it is submitted that the ITLOS has taken the opportunity to
produce some relief in this respect in the more recent advisory opinions, which
arguably go beyond a mere interpretation of the Convention in accordance with
international law as it stood in 1982 when the Convention was adopted.
The risk of fragmentation arising from the fact that the merits of environmental
cases have in most instances been addressed by arbitral tribunals established on the
basis of Annex VII UNCLOS
62
has arguably so far not materialized. The recent
case-law of Annex VII tribunals is rather characterized by a striking coincidence
with the approach pursued by the ITLOS—a fact that can only to some extent be
explained by referring to the partly personal identity of the judges and arbitrators. It
seems that all competent courts and tribunals, including the ICJ (which has arguably
taken a more dynamic approach to the interpretation of international law in its
recent case-law than in the past), agree in the need to meet the challenge of fragmentation by way of interpreting the Convention in a coherent manner. This conclusion can be attested by pointing to the numerous mutual references that can be
found in the jurisprudence of the competent courts and tribunals. While the interrelationship between the relevant decisions is certainly in need of further examination, the overall record concerning the impact of the case-law of international courts
and tribunals in general and the ITLOS in particular on the development of the
environmental principles must thus be regarded as positive.
59 Boyle (2007), p. 379.
60 Ibidem.
61 Rashbrooke (2004), p. 534.
62 Boyle (2007), p. 380.
The Contribution of the ITLOS to Strengthening the Regime for the Protection…