32
exhaustion of local remedies rule does not apply where the claimant State is directly injured
by the wrongful act of another State.
111
Rules of general international law have also been invoked in conjunction with
UNCLOS provisions when they contain the same obligations. International courts
and tribunals have appeared concerned with emphasizing, on the one hand, the particular importance of those obligations and, on the other, the development of international law on the matter at issue in the case.
A significant example can be found in the jurisprudence on the nature and scope
of the duty to cooperate in the protection of the marine environment. Both ITLOS,
first, and, then, the Annex VII Arbitral Tribunal in the South China Sea Arbitration
(which referred to the case law of the Hamburg Tribunal) stated that the duty to
cooperate “is a fundamental principle in the prevention of pollution of the marine
environment under Part XII of the Convention and general international law”.
112
In addition, ITLOS has taken this duty into account to prescribe appropriate
provisional measures to prevent irreparable prejudice to the rights of the parties to
the dispute pending the final decision on the merits.
113
Based on these provisional measures orders, as well as, more in general, on the
jurisprudence examined in this section, it seems that the systemic integration technique promotes a progressive interpretation of UNCLOS. As we have seen, international courts and tribunals take into account the progressive development of
international law and tend to seek overall coherence in the international legal system
to which UNCLOS belongs, harmonizing the Convention with the other rules that
apply to its contracting parties, or at least to the parties to the disputes before them.
Ultimately, judges who employ the systemic integration method believe that a
treaty, rather than being concluded and producing its effects in a legal vacuum,
exists and operates thanks to and within the international legal system.
114
For this
reason, they cannot overlook the development of that system and, instead, take the
view that it is appropriate to enhance the effectiveness of the treaty, based on the
meaning it derives from its place within the international legal order.
115
111 The M/V “Virginia G” Case (Panama/Guinea-Bissau), Judgment, para. 153; The M/V “Norstar”
Case (Panama v. Italy), Preliminary Objections, Judgment, para. 266.
112 ITLOS, The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order, para.
82; ITLOS, Land Reclamation in and around the Straits of Johor, Provisional Measures, Order, 10
September 2003, para. 82; Request for an Advisory Opinion Submitted by the Sub-Regional
Fisheries Commission (SRFC) (Request for Advisory Opinion Submitted to the Tribunal), Advisory
Opinion, para. 140; ITLOS, Delimitation of the Maritime Boundary Between Ghana and Côte
d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), Provisional Measures, Order, 25 April 2015,
para. 73; South China Sea Arbitration (Philippines v. China), Award, para. 946.
113 See Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic
Ocean (Ghana/Côte d’Ivoire), Provisional Measures, Order, 25 April 2015, para. 73. For further
discussion, see Virzo (2018), pp. 150–153.
114 Distefano (2011), p. 383.
115 Salerno (2017), p. 203.
R. Virzo
exhaustion of local remedies rule does not apply where the claimant State is directly injured
by the wrongful act of another State.
111
Rules of general international law have also been invoked in conjunction with
UNCLOS provisions when they contain the same obligations. International courts
and tribunals have appeared concerned with emphasizing, on the one hand, the particular importance of those obligations and, on the other, the development of international law on the matter at issue in the case.
A significant example can be found in the jurisprudence on the nature and scope
of the duty to cooperate in the protection of the marine environment. Both ITLOS,
first, and, then, the Annex VII Arbitral Tribunal in the South China Sea Arbitration
(which referred to the case law of the Hamburg Tribunal) stated that the duty to
cooperate “is a fundamental principle in the prevention of pollution of the marine
environment under Part XII of the Convention and general international law”.
112
In addition, ITLOS has taken this duty into account to prescribe appropriate
provisional measures to prevent irreparable prejudice to the rights of the parties to
the dispute pending the final decision on the merits.
113
Based on these provisional measures orders, as well as, more in general, on the
jurisprudence examined in this section, it seems that the systemic integration technique promotes a progressive interpretation of UNCLOS. As we have seen, international courts and tribunals take into account the progressive development of
international law and tend to seek overall coherence in the international legal system
to which UNCLOS belongs, harmonizing the Convention with the other rules that
apply to its contracting parties, or at least to the parties to the disputes before them.
Ultimately, judges who employ the systemic integration method believe that a
treaty, rather than being concluded and producing its effects in a legal vacuum,
exists and operates thanks to and within the international legal system.
114
For this
reason, they cannot overlook the development of that system and, instead, take the
view that it is appropriate to enhance the effectiveness of the treaty, based on the
meaning it derives from its place within the international legal order.
115
111 The M/V “Virginia G” Case (Panama/Guinea-Bissau), Judgment, para. 153; The M/V “Norstar”
Case (Panama v. Italy), Preliminary Objections, Judgment, para. 266.
112 ITLOS, The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order, para.
82; ITLOS, Land Reclamation in and around the Straits of Johor, Provisional Measures, Order, 10
September 2003, para. 82; Request for an Advisory Opinion Submitted by the Sub-Regional
Fisheries Commission (SRFC) (Request for Advisory Opinion Submitted to the Tribunal), Advisory
Opinion, para. 140; ITLOS, Delimitation of the Maritime Boundary Between Ghana and Côte
d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), Provisional Measures, Order, 25 April 2015,
para. 73; South China Sea Arbitration (Philippines v. China), Award, para. 946.
113 See Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic
Ocean (Ghana/Côte d’Ivoire), Provisional Measures, Order, 25 April 2015, para. 73. For further
discussion, see Virzo (2018), pp. 150–153.
114 Distefano (2011), p. 383.
115 Salerno (2017), p. 203.
R. Virzo