effective mechanisms in the fields of control, sanctions and mutual assistance are
challenges that must be addressed in a more effective way by the States and by the
contracting parties of the instruments instituting such organizations in order to
ensure not only their proper functioning, but also better coordination between the
different bodies responsible for the preservation of the marine environment.
The ongoing process of extension of the continental shelf also raises an interesting challenge. It consists, in our view, of the definition of some aspects stemming
from the provisions of UNCLOS in this domain. Special attention must be given in
future to the exploitation of living organisms that are sedentary species and its
interplay with the regime of rights and freedoms within the context of Article 78
(2) of UNCLOS.
Finally, a reference to a significant issue from an institutional point of view: the
action of the International Tribunal for the Law of the Sea (ITLOS).
29 As for the
normative background, one might say that, regarding marine living resources, there
are three pillars of the approach enshrined in UNCLOS: conservation, management
and cooperation. The rights and duties foreseen in the Convention are present in a
number of its provisions and this not only regarding exploitation, but also in the
wider context of the protection and preservation of the marine environment, scientific research and the prevention of the pollution and the fulfilment in good faith of
obligations under the Convention, and compulsory procedures.
30 Taking into
account ITLOS jurisprudence regarding the conservation of resources,
31 one can
conclude that, in the field of the application of provisional measures (which is
relevant in the context of the preservation of marine resources), the Tribunal
established the following guidance: on the one hand, the Tribunal was sensible to
a wide notion of conservation, aimed at the protection and improvement of resources
in order to achieve the best possible economic and social benefit for mankind and its
environment, at present and in the future, when we are in the presence of measures
designed to protect a specific resource. On the other hand, the Tribunal admitted that,
beyond the multilateral agreement at stake, which was the subject matter of the case,
it is also possible to invoke the relevant provisions of UNCLOS. Finally, the
Tribunal invoked not only the applicable provisions of UNCLOS, but also its
Rules, according to which the Tribunal may prescribe measures different, in whole
or in part, from those requested.
32 One has to recognize that this constitutes an
‘inclusive’ approach enabling consideration of a series of aspects that can provide
solutions to other situations submitted to the Tribunal. Will the Tribunal follow the
abovementioned line with adaptations in order to find the most appropriate outcome
29 For the evolution of such an action, Cf. Vicuña (2018), pp. 96–107.
30 Cf. Arts 56, 194, 286, 297 (3) and 300, UNCLOS.
31 Southern Bluefin Tuna Cases (New Zealand v. Japan and Australia v. Japan, Provisional
Measures). In this respect, Cf. Sohn and Noyes (2004), pp. 844–853.
32 Cf. Art. 89 (5) of the Rules of the Tribunal. In this regard, Cf. Churchill (2012), pp. 143–171, in
particular pp. 151–153.
118
F. C. Cardoso
challenges that must be addressed in a more effective way by the States and by the
contracting parties of the instruments instituting such organizations in order to
ensure not only their proper functioning, but also better coordination between the
different bodies responsible for the preservation of the marine environment.
The ongoing process of extension of the continental shelf also raises an interesting challenge. It consists, in our view, of the definition of some aspects stemming
from the provisions of UNCLOS in this domain. Special attention must be given in
future to the exploitation of living organisms that are sedentary species and its
interplay with the regime of rights and freedoms within the context of Article 78
(2) of UNCLOS.
Finally, a reference to a significant issue from an institutional point of view: the
action of the International Tribunal for the Law of the Sea (ITLOS).
29 As for the
normative background, one might say that, regarding marine living resources, there
are three pillars of the approach enshrined in UNCLOS: conservation, management
and cooperation. The rights and duties foreseen in the Convention are present in a
number of its provisions and this not only regarding exploitation, but also in the
wider context of the protection and preservation of the marine environment, scientific research and the prevention of the pollution and the fulfilment in good faith of
obligations under the Convention, and compulsory procedures.
30 Taking into
account ITLOS jurisprudence regarding the conservation of resources,
31 one can
conclude that, in the field of the application of provisional measures (which is
relevant in the context of the preservation of marine resources), the Tribunal
established the following guidance: on the one hand, the Tribunal was sensible to
a wide notion of conservation, aimed at the protection and improvement of resources
in order to achieve the best possible economic and social benefit for mankind and its
environment, at present and in the future, when we are in the presence of measures
designed to protect a specific resource. On the other hand, the Tribunal admitted that,
beyond the multilateral agreement at stake, which was the subject matter of the case,
it is also possible to invoke the relevant provisions of UNCLOS. Finally, the
Tribunal invoked not only the applicable provisions of UNCLOS, but also its
Rules, according to which the Tribunal may prescribe measures different, in whole
or in part, from those requested.
32 One has to recognize that this constitutes an
‘inclusive’ approach enabling consideration of a series of aspects that can provide
solutions to other situations submitted to the Tribunal. Will the Tribunal follow the
abovementioned line with adaptations in order to find the most appropriate outcome
29 For the evolution of such an action, Cf. Vicuña (2018), pp. 96–107.
30 Cf. Arts 56, 194, 286, 297 (3) and 300, UNCLOS.
31 Southern Bluefin Tuna Cases (New Zealand v. Japan and Australia v. Japan, Provisional
Measures). In this respect, Cf. Sohn and Noyes (2004), pp. 844–853.
32 Cf. Art. 89 (5) of the Rules of the Tribunal. In this regard, Cf. Churchill (2012), pp. 143–171, in
particular pp. 151–153.
118
F. C. Cardoso