215
According to the Tribunal, that provision was the only one in Article 194 relevant to
the establishment of the Marine Protected Area.
104
The interpretation of Article 194(4) UNCLOS in the Chagos Marine Protected
Area Arbitration was ambivalent. The Tribunal firstly adopted an extensive—and
not fully convincing—interpretation of Article 194(4) and eventually applied it only
on a procedural plane, as it had already done with respect to Article 2(3).
The Tribunal broadened the scope of Article 194(4) in reading it in the light of
Article 194(5), which stipulates that “[t]he measures taken in accordance with [Part
XII UNCLOS] shall include those necessary to protect and preserve rare and fragile
ecosystems as well as the habitat of depleted, threatened or endangered species and
other forms of marine life”. According to the Tribunal, Article 194(5) extended the
ambit of Article 194(4) to measures for the conservation and preservation of ecosystems. Consequently, the establishment of the Marine Protected Area in the Chagos
Archipelago would fall within the scope of Article 194(4).
105
In fact, the Tribunal
extended the obligation of the United Kingdom to refrain from unjustifiable interferences in taking measures to prevent, reduce or control pollution of the marine
environment, under Article 194(4), to measures for the conservation and preservation of ecosystems.
Nevertheless, one may question whether Article 194(5) is really meant to widen
the scope of obligations specifically concerning the prevention, reduction and control of marine pollution. The provision literally requires States to take also measures
necessary to protect and preserve marine ecosystems in their environmental policies
pursuant to Part XII UNCLOS. It is accordingly far from persuasive that, in virtue
of Article 194(5), all the obligations under Part XII UNCLOS, albeit specifically
relating to measures concerning pollution of marine environment, apply equally to
measures on the conservation and preservation of ecosystems.
106
104 The Tribunal deemed the obligation of States to endeavour to harmonise their environmental
policies under Article 194(1) UNCLOS as merely prospective: it found that the United Kingdom
did not breach such obligation in declaring the Marine Protected Area (Chagos Marine Protected
Area Arbitration, para. 539).
105 Chagos Marine Protected Area Arbitration, para. 538.
106 Such doubt is seemingly confirmed by the Award in the South China Sea Arbitration. It is true
that there the Arbitral Tribunal held that Article 194(5) extended the scope of Part XII UNCLOS to
the protection and preservation of marine ecosystems as stated in the Chagos Marine Protected
Area Arbitration (South China Sea Arbitration, Award, 12 July 2016, para. 945). However, it
applied Article 194(5) to specify the general obligation to protect and preserve the marine environment under Article 192 (South China Sea Arbitration, Award, 12 July 2016, para. 959) rather than
to translate an obligation pertaining to measures to prevent, reduce or control pollution into an
obligation pertaining to measures necessary to protect and preserve rare or fragile ecosystems. It is
well known that under Article 192 UNCLOS “States have the obligation to protect and preserve the
marine environment”. According to the Tribunal, Article 192 UNCLOS prescribed the duty to
prevent the harvest of endangered species and, in the light of Article 194(5) UNCLOS, the obligation to prevent harms affecting indirectly depleted, threatened, or endangered species through the
destruction of their habitat.
The Interpretation of the United Nations Convention on the Law of the Sea…
According to the Tribunal, that provision was the only one in Article 194 relevant to
the establishment of the Marine Protected Area.
104
The interpretation of Article 194(4) UNCLOS in the Chagos Marine Protected
Area Arbitration was ambivalent. The Tribunal firstly adopted an extensive—and
not fully convincing—interpretation of Article 194(4) and eventually applied it only
on a procedural plane, as it had already done with respect to Article 2(3).
The Tribunal broadened the scope of Article 194(4) in reading it in the light of
Article 194(5), which stipulates that “[t]he measures taken in accordance with [Part
XII UNCLOS] shall include those necessary to protect and preserve rare and fragile
ecosystems as well as the habitat of depleted, threatened or endangered species and
other forms of marine life”. According to the Tribunal, Article 194(5) extended the
ambit of Article 194(4) to measures for the conservation and preservation of ecosystems. Consequently, the establishment of the Marine Protected Area in the Chagos
Archipelago would fall within the scope of Article 194(4).
105
In fact, the Tribunal
extended the obligation of the United Kingdom to refrain from unjustifiable interferences in taking measures to prevent, reduce or control pollution of the marine
environment, under Article 194(4), to measures for the conservation and preservation of ecosystems.
Nevertheless, one may question whether Article 194(5) is really meant to widen
the scope of obligations specifically concerning the prevention, reduction and control of marine pollution. The provision literally requires States to take also measures
necessary to protect and preserve marine ecosystems in their environmental policies
pursuant to Part XII UNCLOS. It is accordingly far from persuasive that, in virtue
of Article 194(5), all the obligations under Part XII UNCLOS, albeit specifically
relating to measures concerning pollution of marine environment, apply equally to
measures on the conservation and preservation of ecosystems.
106
104 The Tribunal deemed the obligation of States to endeavour to harmonise their environmental
policies under Article 194(1) UNCLOS as merely prospective: it found that the United Kingdom
did not breach such obligation in declaring the Marine Protected Area (Chagos Marine Protected
Area Arbitration, para. 539).
105 Chagos Marine Protected Area Arbitration, para. 538.
106 Such doubt is seemingly confirmed by the Award in the South China Sea Arbitration. It is true
that there the Arbitral Tribunal held that Article 194(5) extended the scope of Part XII UNCLOS to
the protection and preservation of marine ecosystems as stated in the Chagos Marine Protected
Area Arbitration (South China Sea Arbitration, Award, 12 July 2016, para. 945). However, it
applied Article 194(5) to specify the general obligation to protect and preserve the marine environment under Article 192 (South China Sea Arbitration, Award, 12 July 2016, para. 959) rather than
to translate an obligation pertaining to measures to prevent, reduce or control pollution into an
obligation pertaining to measures necessary to protect and preserve rare or fragile ecosystems. It is
well known that under Article 192 UNCLOS “States have the obligation to protect and preserve the
marine environment”. According to the Tribunal, Article 192 UNCLOS prescribed the duty to
prevent the harvest of endangered species and, in the light of Article 194(5) UNCLOS, the obligation to prevent harms affecting indirectly depleted, threatened, or endangered species through the
destruction of their habitat.
The Interpretation of the United Nations Convention on the Law of the Sea…