not to degrade the marine environment.
15 It also supported the findings of the
Arbitral Tribunal in the Chagos Marine Protected Area Arbitration, stating that
“the phrasing of Article 194(5) confirms that Part XII is ‘not limited to measures
aimed strictly at controlling marine pollution,’ which while ‘certainly an important
aspect of environmental protection (. . .) is by no means the only one.’” The Tribunal
took the view that the duty of due diligence under Article 192, read in the context of
the general obligation, which was given particular shape in the context of fragile
ecosystems by Article 194(5), “in addition to preventing the direct harvesting of
species recognized internationally as being threatened with extinction, extends to the
prevention of harms that would affect depleted, threatened, or endangered species
indirectly through the destruction of their habitat.”
16 In examining the illegality of
the harvesting of vulnerable, threatened and endangered species, the Tribunal
referred to Convention on the Protection of Biological Diversity (CBD) or the
Convention on Trade in Endangered Species of Wild Fauna and Flora (CITES).
17
The Tribunal concluded that China breached its obligations under Articles 192 and
194(5) to take necessary measures to protect and preserve the marine environment,
with respect to the harvesting of endangered species from the fragile ecosystems at
Scarborough Shoal and Second Thomas Shoal and that it also breached the obligation to protect and preserve the marine environment in respect of its toleration and
protection of the harvesting of giant clams by the propeller chopping method across
the Spratlys.
18
The difference of the approach can also be seen in the Whaling in the Antarctic
case. The preamble of the International Convention for the Regulation of Whaling
(ICRW) indicates both the protection of all whale species from further overfishing
for the interest of the nations of the world in safeguarding for future generations, on
the one hand, and the conservation and sustainable exploitation for the common
interest to achieve the optimum level of whale stocks, on the other. For the purpose
of interpretation of Article VIII of ICRW, while Australia supported the restrictive
interpretation by focusing on the former object and purpose and the development of
the practice under the ICRW, Japan put the emphasis on the latter object and
purpose. Although the ICJ did not gave a definitive answer, the dispute between
the Parties originated from the differing views.
19
The arguments in these precedents reflect the close relationship between the rights
and interests concerning CMFS and those concerning the measures for the PPME.
15 South China Sea Arbitration, Award of 12 July 2016, para. 941.
16 Id., para. 959.
17 Regarding the definition of an “ecosystem”, the Tribunal referred to Article 2 of CBD, id., paras.
945 and it referred to the Appendixes of CITES in considering the species caught by Chinese fishing
vessels, id., paras. 956–957.
18 Id., paras. 950–966, in particular, paras 964–966.
19 I.C.J. Reports 2014, pp. 251–252, paras. 56–58.
2 Implementation of the Rules of the UNCLOS Through Universal and Regional. . .
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15 It also supported the findings of the
Arbitral Tribunal in the Chagos Marine Protected Area Arbitration, stating that
“the phrasing of Article 194(5) confirms that Part XII is ‘not limited to measures
aimed strictly at controlling marine pollution,’ which while ‘certainly an important
aspect of environmental protection (. . .) is by no means the only one.’” The Tribunal
took the view that the duty of due diligence under Article 192, read in the context of
the general obligation, which was given particular shape in the context of fragile
ecosystems by Article 194(5), “in addition to preventing the direct harvesting of
species recognized internationally as being threatened with extinction, extends to the
prevention of harms that would affect depleted, threatened, or endangered species
indirectly through the destruction of their habitat.”
16 In examining the illegality of
the harvesting of vulnerable, threatened and endangered species, the Tribunal
referred to Convention on the Protection of Biological Diversity (CBD) or the
Convention on Trade in Endangered Species of Wild Fauna and Flora (CITES).
17
The Tribunal concluded that China breached its obligations under Articles 192 and
194(5) to take necessary measures to protect and preserve the marine environment,
with respect to the harvesting of endangered species from the fragile ecosystems at
Scarborough Shoal and Second Thomas Shoal and that it also breached the obligation to protect and preserve the marine environment in respect of its toleration and
protection of the harvesting of giant clams by the propeller chopping method across
the Spratlys.
18
The difference of the approach can also be seen in the Whaling in the Antarctic
case. The preamble of the International Convention for the Regulation of Whaling
(ICRW) indicates both the protection of all whale species from further overfishing
for the interest of the nations of the world in safeguarding for future generations, on
the one hand, and the conservation and sustainable exploitation for the common
interest to achieve the optimum level of whale stocks, on the other. For the purpose
of interpretation of Article VIII of ICRW, while Australia supported the restrictive
interpretation by focusing on the former object and purpose and the development of
the practice under the ICRW, Japan put the emphasis on the latter object and
purpose. Although the ICJ did not gave a definitive answer, the dispute between
the Parties originated from the differing views.
19
The arguments in these precedents reflect the close relationship between the rights
and interests concerning CMFS and those concerning the measures for the PPME.
15 South China Sea Arbitration, Award of 12 July 2016, para. 941.
16 Id., para. 959.
17 Regarding the definition of an “ecosystem”, the Tribunal referred to Article 2 of CBD, id., paras.
945 and it referred to the Appendixes of CITES in considering the species caught by Chinese fishing
vessels, id., paras. 956–957.
18 Id., paras. 950–966, in particular, paras 964–966.
19 I.C.J. Reports 2014, pp. 251–252, paras. 56–58.
2 Implementation of the Rules of the UNCLOS Through Universal and Regional. . .
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