29
(CBD) for the purpose of interpreting the UNCLOS provisions at stake in the case.
90
Indeed, in its subsequent award on the merits, the Tribunal relied on the CDB to
determine the meaning of the term “ecosystem” in Article 194(5) UNCLOS:
An ‘ecosystem’ is not defined in the Convention, but internationally accepted definitions
include that in Article 2 of the CDB, which defines ecosystem to mean ‘a dynamic complex
of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit’.
91
Examination of the relevant jurisprudence shows that Article 293(1) UNCLOS
has often been applied in order to coordinate the Convention with rules of international law extrinsic to it. On the basis of this provision, international courts and tribunals have taken into account customary law rules,
92
general principles of law,
93
and international treaties other than UNCLOS.
94
90 PCA, South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and
Admissibility, 29 October 2015, para. 176: “The Tribunal is satisfied that Article 293(1) of the
Convention together with Article 31(3) of the Vienna Convention on the Law of Treaties, enables
it in principle to consider the relevant provisions of the CBD for the purpose of interpreting the
content and standards of Articles 192 and 194 of the Convention”.
91 South China Sea Arbitration (Philippines v. China), Award, para. 945. It must be noted that the
Tribunal interpreted some UNCLOS provisions also in the light of the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES) (Washington, 3 March 1973; entry
into force: 1 July 1975, 991 UNTS 243). As pointed out by the Tribunal, this Convention “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 that informs the content of Articles 192
and 194(5) of the Convention” (ibidem, para. 956). For a discussion of the importance of this award
in the context of marine environment protection, see Kojima (2017).
92 See, for example, with regard to the prohibition of the use of force, ITLOS, M/V Saiga (No. 2)
(Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July 1999, para. 155 and PCA, Guyana
v. Suriname, Award, 17 September 2007, para. 406; and, with regard to the norms of general international law on State responsibility, ITLOS, Delimitation of the Maritime Boundary Between
Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, 23 September
2017, paras 555–560. Already in its Advisory Opinion of 1 February 2011, the Seabed Disputes
Chamber ruled that several articles of the Draft Articles of the International Law Commission on
State Responsibility “are considered to reflect customary international law”. 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. 169.
93 See, for instance, with reference to the “duty to abstain from any measure (…) which might
aggravate or extend the dispute”, South China Sea Arbitration (Philippines v. China), Award, para.
945; and with reference to “well-established principles of international law governing acquiescence, estoppel and extinctive prescription”, ITLOS, The M/V “Norstar” Case (Panama v. Italy),
Preliminary Objections, Judgment, 4 November 2016, para. 301.
94 In addition to the CDB and CITES (see footnote 91), Article 293 UNCLOS has been relied upon
in order to take into account the Convention relating to the definition of the minimum conditions
of access and exploitation of fisheries resources within the maritime zones under the jurisdiction
of Sub-Regional Fisheries Commission Member States (Dakar, 8 June 2012; entry into force 16
September 2012). See Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries
Commission (SRFC) (Request for Advisory Opinion Submitted to the Tribunal), Advisory Opinion,
paras 82–84.
The ‘General Rule of Interpretation’ in the International Jurisprudence Relating…
(CBD) for the purpose of interpreting the UNCLOS provisions at stake in the case.
90
Indeed, in its subsequent award on the merits, the Tribunal relied on the CDB to
determine the meaning of the term “ecosystem” in Article 194(5) UNCLOS:
An ‘ecosystem’ is not defined in the Convention, but internationally accepted definitions
include that in Article 2 of the CDB, which defines ecosystem to mean ‘a dynamic complex
of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit’.
91
Examination of the relevant jurisprudence shows that Article 293(1) UNCLOS
has often been applied in order to coordinate the Convention with rules of international law extrinsic to it. On the basis of this provision, international courts and tribunals have taken into account customary law rules,
92
general principles of law,
93
and international treaties other than UNCLOS.
94
90 PCA, South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and
Admissibility, 29 October 2015, para. 176: “The Tribunal is satisfied that Article 293(1) of the
Convention together with Article 31(3) of the Vienna Convention on the Law of Treaties, enables
it in principle to consider the relevant provisions of the CBD for the purpose of interpreting the
content and standards of Articles 192 and 194 of the Convention”.
91 South China Sea Arbitration (Philippines v. China), Award, para. 945. It must be noted that the
Tribunal interpreted some UNCLOS provisions also in the light of the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES) (Washington, 3 March 1973; entry
into force: 1 July 1975, 991 UNTS 243). As pointed out by the Tribunal, this Convention “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 that informs the content of Articles 192
and 194(5) of the Convention” (ibidem, para. 956). For a discussion of the importance of this award
in the context of marine environment protection, see Kojima (2017).
92 See, for example, with regard to the prohibition of the use of force, ITLOS, M/V Saiga (No. 2)
(Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July 1999, para. 155 and PCA, Guyana
v. Suriname, Award, 17 September 2007, para. 406; and, with regard to the norms of general international law on State responsibility, ITLOS, Delimitation of the Maritime Boundary Between
Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, 23 September
2017, paras 555–560. Already in its Advisory Opinion of 1 February 2011, the Seabed Disputes
Chamber ruled that several articles of the Draft Articles of the International Law Commission on
State Responsibility “are considered to reflect customary international law”. 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. 169.
93 See, for instance, with reference to the “duty to abstain from any measure (…) which might
aggravate or extend the dispute”, South China Sea Arbitration (Philippines v. China), Award, para.
945; and with reference to “well-established principles of international law governing acquiescence, estoppel and extinctive prescription”, ITLOS, The M/V “Norstar” Case (Panama v. Italy),
Preliminary Objections, Judgment, 4 November 2016, para. 301.
94 In addition to the CDB and CITES (see footnote 91), Article 293 UNCLOS has been relied upon
in order to take into account the Convention relating to the definition of the minimum conditions
of access and exploitation of fisheries resources within the maritime zones under the jurisdiction
of Sub-Regional Fisheries Commission Member States (Dakar, 8 June 2012; entry into force 16
September 2012). See Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries
Commission (SRFC) (Request for Advisory Opinion Submitted to the Tribunal), Advisory Opinion,
paras 82–84.
The ‘General Rule of Interpretation’ in the International Jurisprudence Relating…