95
strengthening the regime for the protection of the marine environment. The main
focus of the analysis is on the impact of the relevant jurisprudence of the Tribunal in
relation to the development of environmental principles. Before taking a closer look
at the pertinent case-law of the ITLOS, however, it is necessary to assess whether
and to what degree these principles have been included in Part XII UNCLOS.
2 Environmental Principles in the UNCLOS
Section 1 of Part XII UNCLOS contains a number of quasi-constitutional principles
on environmental protection, which are then substantiated in the following sections
with regard to individual sources of pollution.
6
The most general principle is codified in Art. 192 UNCLOS, which prescribes that “States have the obligation to protect and preserve the marine environment”. The fact that this obligation, taking into
account its further development in the subsequent provisions as well as the need to
balance it with colliding (and equally legitimate) uses of the sea, cannot be fulfilled
in an “all-or-nothing fashion”,
7
clearly demonstrates its legal nature as a principle of
law.
8
Furthermore, by prohibiting that damage or hazards are directly or indirectly
transferred from one marine area to another, and that one type of marine pollution
is transformed into another, Art. 195 UNCLOS ought to be regarded as codifying
the principle of origin.
9
Art. 194 UNCLOS, which prescribes an obligation of the
parties to take measures to prevent, reduce and control pollution of the marine environment, inter alia by using the best practicable means, in conjunction with Art.
204(2) UNCLOS (concerning the need to monitor the risks or effects of pollution)
and the duty to conduct an environmental impact assessment (EIA) under Art. 206
UNCLOS, is based on the principle of prevention.
10
Finally, while Part XII UNCLOS
does not contain any express reference to the precautionary approach/principle, it
has been argued that the wording of the definition of pollution codified in Art. 1(1),
no. 4, UNCLOS (“is likely to result”), read together with the broadly framed duty
to protect and preserve the marine environment (Art. 192 UNCLOS) and the obligation to undertake an EIA whenever States have “reasonable grounds for believing
6 Dzidzornu (1998), p. 97; Tanaka (2015), pp. 34–36.
7 Dworkin (1997), pp. 24–25.
8 It should be noted that the term “principles”, when used in this article, does not imply any statement concerning the legally binding nature of the underlying normative statements. In particular,
it ought not be confused with the concept of “general principles of law” in terms of Art. 38(1)(c)
of the Statute of the ICJ. Thus, this article does not follow the approach taken by Judge Cançado
Trindade in the Pulp Mills case; see ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay),
Judgment, 20 April 2010, Separate Opinion of Judge Cançado Trindade, paras 39–42, 207. For a
critical analysis see Proelss (2017), paras 5–6.
9 Czybulka (2017a), paras 3–4, 13.
10 Proelss (2004), p. 84; Rashbrooke (2004), pp. 519–520; Blitza (2017a), para. 20, and (2017b),
para. 1; Czybulka (2017b), para. 12. See generally Pulp Mills on the River Uruguay, Judgment,
para. 204.
The Contribution of the ITLOS to Strengthening the Regime for the Protection…
strengthening the regime for the protection of the marine environment. The main
focus of the analysis is on the impact of the relevant jurisprudence of the Tribunal in
relation to the development of environmental principles. Before taking a closer look
at the pertinent case-law of the ITLOS, however, it is necessary to assess whether
and to what degree these principles have been included in Part XII UNCLOS.
2 Environmental Principles in the UNCLOS
Section 1 of Part XII UNCLOS contains a number of quasi-constitutional principles
on environmental protection, which are then substantiated in the following sections
with regard to individual sources of pollution.
6
The most general principle is codified in Art. 192 UNCLOS, which prescribes that “States have the obligation to protect and preserve the marine environment”. The fact that this obligation, taking into
account its further development in the subsequent provisions as well as the need to
balance it with colliding (and equally legitimate) uses of the sea, cannot be fulfilled
in an “all-or-nothing fashion”,
7
clearly demonstrates its legal nature as a principle of
law.
8
Furthermore, by prohibiting that damage or hazards are directly or indirectly
transferred from one marine area to another, and that one type of marine pollution
is transformed into another, Art. 195 UNCLOS ought to be regarded as codifying
the principle of origin.
9
Art. 194 UNCLOS, which prescribes an obligation of the
parties to take measures to prevent, reduce and control pollution of the marine environment, inter alia by using the best practicable means, in conjunction with Art.
204(2) UNCLOS (concerning the need to monitor the risks or effects of pollution)
and the duty to conduct an environmental impact assessment (EIA) under Art. 206
UNCLOS, is based on the principle of prevention.
10
Finally, while Part XII UNCLOS
does not contain any express reference to the precautionary approach/principle, it
has been argued that the wording of the definition of pollution codified in Art. 1(1),
no. 4, UNCLOS (“is likely to result”), read together with the broadly framed duty
to protect and preserve the marine environment (Art. 192 UNCLOS) and the obligation to undertake an EIA whenever States have “reasonable grounds for believing
6 Dzidzornu (1998), p. 97; Tanaka (2015), pp. 34–36.
7 Dworkin (1997), pp. 24–25.
8 It should be noted that the term “principles”, when used in this article, does not imply any statement concerning the legally binding nature of the underlying normative statements. In particular,
it ought not be confused with the concept of “general principles of law” in terms of Art. 38(1)(c)
of the Statute of the ICJ. Thus, this article does not follow the approach taken by Judge Cançado
Trindade in the Pulp Mills case; see ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay),
Judgment, 20 April 2010, Separate Opinion of Judge Cançado Trindade, paras 39–42, 207. For a
critical analysis see Proelss (2017), paras 5–6.
9 Czybulka (2017a), paras 3–4, 13.
10 Proelss (2004), p. 84; Rashbrooke (2004), pp. 519–520; Blitza (2017a), para. 20, and (2017b),
para. 1; Czybulka (2017b), para. 12. See generally Pulp Mills on the River Uruguay, Judgment,
para. 204.
The Contribution of the ITLOS to Strengthening the Regime for the Protection…