28
Mills on the River Uruguay: “a precautionary approach may be relevant in the interpretation and application of the provisions of the Statute [of the River Uruguay]”.
84
The Chamber then observed that
[t]his statement may be read in light of article 31, paragraph 3(c), of the Vienna Convention,
according to which the interpretation of a treaty should take into account not only the context but ‘any relevant rules of international law applicable in the relations between the
parties’.
85
In the Advisory Opinion (which as such did not concern the reference to other
rules of international law applicable only to the parties to a dispute), the Chamber
did not address the controversial question of whether Article 31(3)(c)VCLT permits
the application of norms extrinsic to a multilateral treaty to all the contracting parties to the treaty.
86
In other words, the Chamber took a cautious stance, as is clear
not only from its silence on the question, but also from the implied suggestion that,
in any case, the relevant rule was a norm of general international law—and, besides,
not a fully established one (it was a “trend” that had recently been “initiated”). The
Chamber’s only mention of treaty law was its reference to “a growing number of
international treaties and other instruments”
87
that, by incorporating the precautionary approach, were contributing to the emergence of a new international custom.
With regard to Article 293(1) UNCLOS, there seem to be two reasons why international courts and tribunals having jurisdiction under Part XV UNCLOS and wishing to interpret the Convention “systemically” may choose to invoke this provision.
Firstly, because it enables them to apply “other rules of international law not incompatible with this Convention” (i.e., UNCLOS); secondly, because the “other rules”
include the VCLT articles on interpretation,
88
and thus also Article 31(3)(c). The
Annex VII Arbitral Tribunal in the South China Sea Arbitration, for example, stated
in its award on jurisdiction and admissibility that Articles 293(1) UNCLOS and
31(3) VCLT enabled it to take into account the Convention on Biological Diversity
89
84 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area (Request for Advisory Opinion Submitted to the Seabed Dispute Chamber),
Advisory Opinion, para. 135. Quoting from ICJ, Pulp Mills on the River Uruguay (Argentina v.
Uruguay), Judgment, 20 April 2010, para. 164. The “Statute of the River Uruguay”, a bilateral
treaty signed in 1975, established an institutionalized cooperation between Argentina and Uruguay
which was designated by the ICJ as an international organization.
85 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area (Request for Advisory Opinion Submitted to the Seabed Dispute Chamber),
Advisory Opinion, para. 135.
86 For a general discussion, see McLachlan (2005), pp. 313–315.
87 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area (Request for Advisory Opinion Submitted to the Seabed Dispute Chamber),
Advisory Opinion, para. 135.
88 Ibidem, para 58. As noted earlier (footnote 8), at para. 57 of the Advisory Opinion, the Seabed
Dispute Chamber stated that Articles 31–33 VCLT “are to be considered as reflecting customary
international law”.
89 Rio de Janeiro, 5 June 1992; entry into force: 29 December 1993, 1760 UNTS 79.
R. Virzo
Mills on the River Uruguay: “a precautionary approach may be relevant in the interpretation and application of the provisions of the Statute [of the River Uruguay]”.
84
The Chamber then observed that
[t]his statement may be read in light of article 31, paragraph 3(c), of the Vienna Convention,
according to which the interpretation of a treaty should take into account not only the context but ‘any relevant rules of international law applicable in the relations between the
parties’.
85
In the Advisory Opinion (which as such did not concern the reference to other
rules of international law applicable only to the parties to a dispute), the Chamber
did not address the controversial question of whether Article 31(3)(c)VCLT permits
the application of norms extrinsic to a multilateral treaty to all the contracting parties to the treaty.
86
In other words, the Chamber took a cautious stance, as is clear
not only from its silence on the question, but also from the implied suggestion that,
in any case, the relevant rule was a norm of general international law—and, besides,
not a fully established one (it was a “trend” that had recently been “initiated”). The
Chamber’s only mention of treaty law was its reference to “a growing number of
international treaties and other instruments”
87
that, by incorporating the precautionary approach, were contributing to the emergence of a new international custom.
With regard to Article 293(1) UNCLOS, there seem to be two reasons why international courts and tribunals having jurisdiction under Part XV UNCLOS and wishing to interpret the Convention “systemically” may choose to invoke this provision.
Firstly, because it enables them to apply “other rules of international law not incompatible with this Convention” (i.e., UNCLOS); secondly, because the “other rules”
include the VCLT articles on interpretation,
88
and thus also Article 31(3)(c). The
Annex VII Arbitral Tribunal in the South China Sea Arbitration, for example, stated
in its award on jurisdiction and admissibility that Articles 293(1) UNCLOS and
31(3) VCLT enabled it to take into account the Convention on Biological Diversity
89
84 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area (Request for Advisory Opinion Submitted to the Seabed Dispute Chamber),
Advisory Opinion, para. 135. Quoting from ICJ, Pulp Mills on the River Uruguay (Argentina v.
Uruguay), Judgment, 20 April 2010, para. 164. The “Statute of the River Uruguay”, a bilateral
treaty signed in 1975, established an institutionalized cooperation between Argentina and Uruguay
which was designated by the ICJ as an international organization.
85 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area (Request for Advisory Opinion Submitted to the Seabed Dispute Chamber),
Advisory Opinion, para. 135.
86 For a general discussion, see McLachlan (2005), pp. 313–315.
87 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area (Request for Advisory Opinion Submitted to the Seabed Dispute Chamber),
Advisory Opinion, para. 135.
88 Ibidem, para 58. As noted earlier (footnote 8), at para. 57 of the Advisory Opinion, the Seabed
Dispute Chamber stated that Articles 31–33 VCLT “are to be considered as reflecting customary
international law”.
89 Rio de Janeiro, 5 June 1992; entry into force: 29 December 1993, 1760 UNTS 79.
R. Virzo