Master Thesis Juan Luis Denegri Martinelli 10839909
Is there an erga omnes obligation to protect the
environment beyond national jurisdiction or control?
Abstract
In international environmental law there has been an uneven development regarding the provisions that provide protection to common areas. In this sense, customary international law has evolved to protect States from harm, but the stance of the international community regarding area beyond national jurisdiction as a whole has not been established. Therefore, it is important to determine if there is a common logic in the conventional practice regarding common areas such as the atmosphere, seas and Antarctica that could evidence the formation a rule that provides for their protection. Furthermore, this conventional practice should not only demonstrate the existence of such rule, but it order to be effective it would need to be erga omnes as well. To establish this it is necessary to analyse the structure of the customary rule, how it interconnects all common areas and if it meets the threshold of importance.
2 CONTENT
Introduction 3
1. Concept and nature of erga omnes obligations
1.1. Formation of customary norms and multilateral treaties 5 1.2. Appearance and form of erga omnes obligations 7 1.3. Establishment and nature of a general interest 9
2. Development of environmental obligations 13
2.1. Atmospheric pollution, Ozone Depletion and Climate Change 16
2.2. The High Seas and deep seabed 21
2.3. Protection of Antarctica 27
3. Formation and Scope of a general erga omnes obligation to protect the environment
3.1. Formation of a customary international law 28 3.2. Erga omnes character of the obligation to protect the environment 31
Conclusion 36
3 Introduction
The natural resources are an important part of the international community’s general interests1 and as such they have been included in the United Nations General Assembly Resolutions since 1970 with resolution 2749 (XXV) which addressed the protection of the minerals on the oceans floor2. Since then then international community has shown a keen interest in the protection of the environment as a whole, as it was followed by the Stockholm Declaration of 19723, which provides that States should take into consideration and refrain from causing transboundary harm not only to other States but also to areas beyond their national jurisdiction. Later through the 1982 United Nations Convention of the Law of the Seas established in article 136 that “the Area and its resources are the common heritage of mankind”4 in accordance with the previous resolution 2749 (XXV). In this sense, recently the Rio+20 Outcome Document stated that there is a necessity to strengthen international cooperation in order to protect the environment as a whole5.
As common areas fall under the jurisdiction of no State the importance for their protection has increased, in particular in the case of the atmosphere which has no comprehensive agreement that encompasses all issues affecting it. However, as the international community has recognised the interconnected nature of the global environment6, there has also been a consistent provision that bind all common areas7, which include the seabed, the high seas, the atmosphere and Antarctica.
The protection of the common areas has fallen mainly under the Ozone Convention, the UNFCCC, UNCLOS and the Antarctica Treaty, among other international documents that complement the provisions established on those instruments. And although
1 Gaja, Giorgio. "Protecting community interests concerning natural resources (364)." Collected Courses
of the Hague Academy of International Law. The Hague Academy of International Law. 171
http://referenceworks.brillonline.com/entries/the-hague-academy-collected-courses/protecting-community-interests-concerning-natural-resources-364-ej.9789004255579.009_185.15
2 Ibidem, 172.
3 United Nations, ‘Declaration of the United Nations Conference on the Human Environment’ (adopted 16 June 1972) U.N. Doc. A/Conf.48/14/Rev. 1(1973).
4 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, art. 136.
5 United Nations Conference on Sustainable Development Rio+20, Outcome Document (adopted 27 July 2012) A/RES/66/288.
6 United Nations Conference on Sustainable Development Rio+20, Outcome Document (adopted 27 July 2012) A/RES/66/288.
7 Ragazzi M, The Concept of International Obligations Erga Omnes(Maurizio Ragazzi ed, Oxford University Press 1998)
4 fragmented, can provide a common and uniform approach to the protection of areas beyond national jurisdiction if their provisions are consistent, do not contradict each other and show a degree of uniformity8. This would in turn provide evidence, in accordance with article 38 of the ICJ Statute, for the existence of an international customary international norm9.
After the establishment of a general customary international law that provides for the protection of the environment beyond national jurisdiction that has developed as consequence of the successive conventions10. Due to the nature of the global environment and the way it is considered in treaty practice its protection could be able to reflect the structure established in the Barcelona Traction case11 for obligations that are owed to the international community as a whole and therefore have erga omnes effect. As these are ‘public goods’ that can later become erga omnes obligations, the economic definition of the term which characterizes them as indivisible and spread around the whole community, non-excludable and non-rivalrous12 can serve as a guideline. This would naturally entail that these ‘public goods’ cannot be protected in a fragmented way and that each and all members of the group, or the community have an interest in their protection13. However, in addition to the nature of the global environment, it is also important to evaluate the importance of the right protected, as not any right that has multilateral structure has erga omnes effects14.
Finally, as there is a common thread that binds all environmental obligations into one and this is evidenced by the consistent treaty practice it is important to determine the common obligations regarding these areas beyond national jurisdiction and if they engage the international community as a whole and individual States as well. This can be determined by the possible breach of the proposed obligation that can result in the
8 Dinstein, Y. The Interaction between customary international law and treaties, 322 Recueil des cours 243 2006, p. 297.
9 Ibidem, p. 266 10 Ibidem, p. 300.
11 Barcelona Traction, Light and Power Company Limited (Belgium v Spain)[1970] Reports (ICJ) [33]. 12 Villalpando S., Villalpando S., ‘The Legal Dimension of the International Community: How Community Interests Are Protected in International Law’ (2010) 21 European Journal of International Law. 392. 13 Ibidem, 392.
14 Tams, ChristianJ, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005, 136.
5 confirmation by the international community of the general interest to protect it through an erga omnes obligation15.
1. Concept and nature of erga omnes obligations
1.1. Formation of customary norms and multilateral treaties
In accordance with article 38 of the Statute of the ICJ customary international law can be best defined as the “evidence of a general practice accepted as law”16. Moreover, as was pointed out by the ICJ in the Case concerning the Delimitation of the Marine
Boundary in the Gulf of Maine Area customary norms must be determined through a
process of induction and not by deduction, which means that the analysis has to be based on the actual practice accepted ad law.17 To do this it is important first to determine what is meant by general practice18 and accepted as law. In this sense it is important to answer whose practice is to be considered and what constitutes a conduct, as what is meant by general and when do these have the required opinion juris.
First, it must be clear that “general practice constituting the font et origo of customary international law is, in essence, that of States”19 as they are endowed with full international legal personality and therefore constitute the main locomotive of international law-making20. Together with States, Inter-Governmental Organizations, as entities that enjoy partial international legal personality, independently from its member States have also treaty-making capacity21. So they too can contribute in a different way to the formation of custom through the international practice of their various organs, as evidence of a common opinion juris.22 As an example, the ICJ stated in the Nicaragua
case that “opinion juris may… though with all due causation, be deduced from, inter
15 Tams, ChristianJ, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005) 155.
16 Statute of the International Court of Justice, (adopted 26 June 1945, entered into force 24 October 1945) 39 AJIL Supp. 215 (1945), art. 38.
17 Case concerning the Delimitation of the Marine Boundary in the Gulf of Maine Area (Canada v. United
States), ICJ Reports 1984, [] in Dinstein, Y. The Interaction between customary international law and treaties, 322 Recueil des cours 243 2006
18 Dinstein, Y. The Interaction between customary international law and treaties, 322 Recueil des cours 243 2006, p. 266
19 Ibidem. 20 Ibidem.
21 Dinstein, Y. The Interaction between customary international law and treaties, 322 Recueil des cours 243 2006, p. 267
6
alia… the attitude of States towards certain General Assembly resolutions”23. In sum, the general practice is clearly referred to States and other entities with legal personality can also collaborate with the formation of custom in a merely supportive role. This in turn is an important issue to also determine as States and Inter-governmental Organizations are the main law-making entities at the international level, it can be assumed in the present paper that they make-up the international community in an exclusive manner.
Secondly, it is important to determine which practices are to be considered as evidence of the formation of a determinate custom and what is meant by general24. Regarding practice it is limited to the conduct of States through its competent organs, however, as was determined by the ILC in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) there are conditions to determine when an act is attributed to a State, such as when is a particular organ considered competent to act on behalf of a State25 or when do acts committed by individuals can be attributed to a State26, and can therefore be considered as ‘acts of the State’27. Regarding the generality, there is no necessity for the practice to be universal; it is only required for the practice to be “extensive” in the words of the ICJ28. Nor is there a requirement for the practice to be uniform, as it is very difficult for States to replicate in detail others conduct29. On this matter, the ICJ stated that it “does not consider that, for the rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule”30; however, they must not contradict themselves substantially31.
23 Case concerning Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicaragua vs.
United States) ICJ Reports 1986, pp. 14, 98, 78 in Dinstein, Y. The Interaction between customary international law and treaties, 322 Recueil des cours 243 2006, p. 303
24 Dinstein, Y. The Interaction between customary international law and treaties, 322 Recueil des cours 243 2006, p. 266
25 ILC, Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), (adopted 2001) A/56/10.
26 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).
Merits, Judgment. I.C.J. Reports 1986, [20].
27 Dinstein, Y. The Interaction between customary international law and treaties, 322 Recueil des cours 243 2006, p. 269.
28 Ibidem, p. 286 29 Ibidem, p. 284 30 Nicaragua Case p. 98
31 Dinstein, Y. The Interaction between customary international law and treaties, 322 Recueil des cours 243 2006, p. 284.
7 With respect to the opinion juris element the ICJ has said that “the frequency or even habitual character of the acts is not in itself enough”32, in this sense the formation of any new customary international law resides on the presence of a communal opinio juris33, which means that a certain practice of States has the force of law and is therefore a legal obligation34. As the process to determine the opinio juris for each State can proof quite difficult, so to extract from a conduct a communal opinio juris, “collective statements issued by multilateral fora of States, such as the UN General Assembly”35 can more effectively evidence this element.
Finally, regarding the relation of the formation of custom and treaty-making, although treaties do not necessarily reflect the standing customary norms and can sometime divert from the ruling customary rules, “a good gauge of communal opinion juris would consist of a declaration inscribed in a multilateral codification treaty to the effect that rules enunciated in the instrument reflect customary international law”36. Furthermore, the repetition of the substantial elements of the treaties can contribute as evidence of the existence of communal opinio juris37. In addition to the repetition, the number of States
party to the successive treaties can also be an indication of the support a provision has and how extensive is the opinio juris in contains38. However, in this respect any disruption in the succession chain can serve as evidence a contrario39, nevertheless this can be a useful way to test if the repetition, maintained unbroken can definitely provide substantial evidence of the existence of a communal opinio juris.
1.2. Appearance and form of erga omnes obligations
Since the South West Africa cases where Liberia and Ethiopia claimed against South Africa on behalf of South West Africa, obligations that have an erga omnes effect have
32 North Sea Continental Shelf cases, Judgment, I.C.J. Reports 1969, [44]
33 Dinstein, Y. The Interaction between customary international law and treaties, 322 Recueil des cours 243 2006, p. 297
34 North Sea Continental Shelf cases, Judgment, I.C.J. Reports 1969, [43]
35 Dinstein, Y. The Interaction between customary international law and treaties, 322 Recueil des cours 243 2006, p. 297.
36 Ibidem, p. 299
37 Resolution on “Problems Arising from a Succession of Codification Conventions on a Particular Subject”, 66 (II) Annuaire de l’Institut de droit international 435, 441 (Lisbon, 1995) (Conclusion 12) in Dinstein, Y. The Interaction between customary international law and treaties, 322 Recueil des cours 243 2006, p. 299
38 Dinstein, Y. The Interaction between customary international law and treaties, 322 Recueil des cours 243 2006, p. 300.
8 been present in the decisions of the ICJ. At the time judge Jessup in a separate opinion explained that the Article 7 of the South West Africa Mandate was intended to “recognise and to protect the general interests of Members of the international community” similar to those provisions of the Convention to prevent Genocide40. Moreover, in his dissenting opinion on the second phase of the cited case, insisting that “[s]ates may have a general interest-cognizable in the International Court-in the maintenance of an international regime adopted for the common benefit of the international society”41. This however, was not the view of the ICJ, which denied the standing of both Ethiopia and Liberia stating that “such rights or interests, in order to exist, must be clearly vested in those who claim them, by some text or instrument, or rule of law”42.
Nevertheless, in 1970 the ICJ during the second phase of the Barcelona Traction between Belgium and Spain determined and defined in an obiter dictum of their decision the existence of obligations that because of their nature differed from regular contractual ones. These obligations as opposed to those resulting from the foreign investments as in the case of Barcelona Traction, Light and Power Company, limited were not owed to specific states, but were owed to the international community as a whole due to their nature and the importance of the rights involved43. Additionally, the ICJ lists a number of examples to demonstrate the existence of erga omnes obligations, such as the outlawing of acts of aggression or of genocide, and the protection from slavery and racial discrimination and it opens the possibility for others which are conferred by international instruments of a universal or quasi-universal character.44 Therefore, the ICJ modified its original stance and goes further to state that erga omnes obligations are necessarily based on a general interest manifested by the international community and are henceforth owed to it as a whole. Additionally, it provides a list of some obligations that fit the description proposed and states that others may be conferred by “international instruments of a universal or quasi-universal character”.
40 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: I.C. J. Report; 1962, p. 319, Separate Opinion Judge Jessup, p 432. 41 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), (Second Phase) [1966] I.C. J. Report; 1966, p. 325, Dissenting Opinion Judge Jessup, p 371.
42 South West Africa Cases (Ethiopia v South Africa, Liberia v. South Africa)(Second Phase) [1966] ICJ Rep 6.p 32 and 47
43 Barcelona Traction, Light and Power Company Limited (Belgium v Spain)[1970] Reports (ICJ) [33]. 44 Barcelona Traction, Light and Power Company Limited (Belgium v Spain)[1970] Reports (ICJ) [34].
9 This means that there is no exhaustive list of norms that fall within this category and it will depend on the international community or any group of states to determine a common interest. Therefore, new erga omnes obligations can emerge from treaties related to a wide variety of subjects and it will be the will of the state, acting and the international community, that would grant those obligations the importance necessary to be erga omnes.
As a result there are treaties that no only establish bilateral obligations between the states party to it, but can simultaneously create an obligation owed to all the parties as a whole. This means that multilateral treaties vary in their structure “both of performance and of the State parties’ interest in such performance”45. Some multilateral treaties contain provisions that cannot be divided into bilateral relationships, as they form an indivisible whole and must be performed by every party, as in the Nuclear Test Ban Treaty of 196346.
1.3. Establishment and nature of a general interest
As it has been shown, the establishment of a general interest can grant related obligations an erga omnes character. Therefore, for the purpose of this paper it is important to define the legal character of general interests. How are they formed and established in accordance with international law. In this sense, “[t]he ‘international community’ is omnipresent in the contemporary discourse of international relations: appeals are repeatedly made to it, outrage is expressed in its name, action (sometimes of a military character) is undertaken to protect its interests.”47 This follows the idea that at the international level exist certain ‘public goods’. This would mean that “[b]eyond the preservation of the individual sphere or the achievement of reciprocal advantages, states were brought to take into account collective interests at a global scale which may be satisfied only if all members of the social group are engaged in their protection: they are ‘community interests’”48. The key issue here would be that there exist an interest that
45 B Simma, ‘Bilateralism and Community Interest in the Law of State Responsibility’ in Y Dinstein (ed),
International Law at a Time of Perplexity (Martinus Nijhoff Publishers, Dordrecht 1989) 821-825
46 Ibidem.
47 Villalpando S., ‘The Legal Dimension of the International Community: How Community Interests Are Protected in International Law’ (2010) 21 European Journal of International Law 387.
10 compromises all States party to it and which cannot depend merely on reciprocal compliance of States towards each other.
However, we must point out that, following the practice of States and the ICJ, there are also issues that have also gained importance for the international community, but have not broken away from the bilateral relation between States. For example, the consular or diplomatic relations, which though there is a collective interest to protect they depend eminently on the bilateral nature of the obligation49. This was clearly seen in the case concerning the United States Diplomatic and Consular Staff in Tehran, where the ICJ determined that “[i]n its Order of 15 December 1979, the Court made a point of stressing that the obligations laid on States by the two Vienna Conventions are of cardinal importance for the maintenance of good relations between States in the interdependent world of today.”50 This would mean that the ICJ values the importance of those obligations, in order to guarantee the peaceful cooperation between States. However, although its importance for the international community as a whole, the nature of said obligation would remain bilateral and could not be attributed the erga
omnes character.
Nevertheless, it is precisely the nature of general interests, as element of the erga omnes obligations that in the words of Judge Simma are not exhausted by the correlative rights and obligations running between states, but also incorporate common interests of the international community as a whole, the main focus of this section. Therefore, having established the general concept in relation to those general interests, we must now move on to discuss their emergence in the international order. In this sense, “the existence of common interests does not derive from scientific abstraction but rather flows from the recognition of concrete problems”.51 This would mean that there are certain issues that cannot be addressed just through a bilateral means and which would only be negatively affected by reciprocity. Issues like those enumerated in the Barcelona Traction case, eminently related but not limited to human rights.
The nature of these general interests and the resulting obligation was also asserted by the ICJ in the Advisory Opinion regarding reservations to the Genocide Convention.
49 Ibid. 395.
50 United States Diplomatic and Consular Staff in Tehran, Judgment, 1. C. J. Reports 1980, p. 3, 91. 51 Tanaka Y, ‘International Protection of Community Interests in International Law: The Case of the Law of the Sea’ (2011) Mack Planck Yearbook of United Nations Law, p. 332.
11 The ICJ declared that “[T]he contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages and disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.”52
Furthermore, to attest the appearance of these interests and then to review their erga
omnes effects, the cases where states have claimed and argued for their existence can
provide also an approach to the nature of the obligation. In the Nuclear Tests case between New Zealand and France, for example, New Zealand brought among its arguments the recent Barcelona Traction obiter dictum and although it was not addressed by the ICJ, the arguments presented by the claimant are nevertheless important to assess and determine how do these general interests emerge and become obligation with erga omnes effects53. In this case regarding French atmospheric nuclear tests in the South Pacific, Australia and New Zealand claimed that those tests violated the rights of the international community that no nuclear tests that give to radioactive fallout be conducted and that it also violates the rights of all members of the international community, to the preservation from unjustified artificial radioactive contamination of the terrestrial, maritime and aerial environment of the region, among others. Additionally, as part of New Zealand’s memorial referring to the ICJ Advisory Opinion on reservations to the Genocide Convention, stated that “it is acknowledged, with specific reference to genocide that customary law as well as treaty law may give rise to obligations erga omnes and to the corresponding rights of protection.”54 Moreover, France submitted that the right to the preservation of the environment, which includes an obligation owed to the whole international community as it reflects community interests. 55 Additionally, France argued that the obligation not to undertake nuclear testing which gives rise to radioactive fallout was of similar nature as the outlawing of aggression and genocide, as they affect the international community as a whole56.
52 Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15, 23.
53 Nuclear Tests (New Zealand v. France), New Zealand Memorial, I.C.J. Reports 1974, par. 199-202.
54 Nuclear Tests (New Zealand v. France), New Zealand Memorial, I.C.J. Reports 1974, par. 200.
55 Nuclear Tests (New Zealand v. France), New Zealand Memorial, I.C.J. Reports 1974, par. 207. 56 Nuclear Tests (New Zealand v. France), New Zealand Memorial, I.C.J. Reports 1974, par. 207.
12 Furthermore, beyond a perspective that resides only on the structural approach to identify an erga omnes obligation, the significance of the general interest the erga
omnes obligation is made to protect has become the defining element which sets these
kind obligations apart from other multilateral ones57. This has also been set clear by the ICJ when stating that erga omnes obligations gain this quality “in view of the importance of the rights involved”58. However, to do this it is important to establish the degree of importance required in order to identify an obligation as erga omnes59.
In this sense, the ICJs jurisprudence has consistently stated that in order to assess the importance of a right involved it is no necessary to address the ways in which that right can be infringed, so the erga omnes status does not depend either on how the obligation is breach or the effects of said breach60. An example of this is the East Timor case where the ICJ referred to the evolution of the right of self-determination, considered it as an erga omnes obligation and in doing so only considered its importance and not the way it was violated or the seriousness61. Consequently, it is the level of importance of the right, independent from the concrete situations in which it is applied62 that has to be considered determining its status.
In order to flesh out those obligations that have an erga omnes effect by applying the material approach, in the absence of a clear cut test established by the ICJ, there are to non-mutually exclusive ways63. The first is by comparison to the elements required to establish an ius cogens obligation, as they are of an erga omnes character and even in the Barcelona Traction case the examples cited were later used during the Vienna Conference64 that resulted in article 53 of the Vienna Convention on the Law of Treaties
57 Tams, ChristianJ, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005, 136
58 Barcelona Traction, Light and Power Company Limited (Belgium v Spain)[1970] Reports (ICJ) [34] Tams, ChristianJ, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005) 136.
59 Ibidem.
60 Tams, ChristianJ, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005) 137
61 East Timor case (Portugal v. Australia) ICJ Reports 1995, pp. 29 in Tams, ChristianJ, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005) 137.
62 Ibidem.
63 Tams, ChristianJ, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005) 138
64 Tams, ChristianJ, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005) 140.
13 (VCLT)65. Additionally, it is also important to address those obligations that do not stem from ius cogens norms, such as dispositive obligations erga omnes and therefore must follow different criteria from those that are66. The logical conclusion of this is that there are obligations that would void treaties that go against them and those that, although having erga omnes character, do not have that effect.
The test to determine the importance of dispositive obligations erga omnes can come from the conventional evidence and from courts decisions. In this sense, the ICJ for example has highlighted certain factors like recognition in the “UN Charter, in the practice of UN organs, in other treaties, preferably universal treaties, in general international law, or in the jurisprudence of the ICJ”67. This would mean that if all of the cited factor coincide that from a certain right can emerge an erga omnes obligation, then it can surpass the threshold of importance, in other words, it is not enough for only one factor to show this68.
Furthermore, these factors in many cases can be only fleshed out through a dialectic process, this means in relation to the breaches of the obligation69. This would make the compliance element of the obligation an essential aspect to determine if it has an erga
omnes character. As a breach not only can result in an international judicial process, but
it can also ignite a reaction from the international community, thus evidencing the communal interest to protect the right that is being breached or violated70. So the factors and the eventual breaches are two sides of a coin.
2. Development of environmental obligations
To determine if there is an erga omnes obligation to protect the environment beyond national jurisdiction it must first be understood that states have approached this issue in a fragmented way. This means that there are specific conventions and treaties that create norms which regulate specific issues regarding the environment. This does not mean that there is no connection between, for example, the protection of the high seas and
65 Vienna Convention on the Law of Treaties, (adopted 23 May 1969, entered into force 27 January 1980).
66 Tams, ChristianJ, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005) 152.
67 Ibidem., p. 153. 68 Ibidem., p. 154. 69 Ibidem., p. 155. 70 Ibidem., p. 156.
14 dealing with climate change. On the contrary, although the there is a separate approach, protection of the environment must have a holistic effect and ultimately proofs that the protection of one issue is tied up with another.
The international community has also acknowledged the integral nature of the global environment and the need to protect it. In the Stockholm Declaration on the Human Environment of 1972 for example, it was recognised in its Principle 1 that there is a “solemn responsibility to protect the environment for present and future generations”. Furthermore, the “very nature of the human environment as a holistic entity, and the relationship between its protection and the enhancement of the basic values of the international community, make environmental law an obvious area to explore, however briefly, in a study on the concept of obligations erga omnes”.71
Following the Stockholm Declaration through the General Assembly passed the World Charter for Nature which in its first principle established that “Nature shall be respected and its essential processes shall not be Impaired” and immediately in the following principles 3 and 4 reiterate the integral approach to the protection of the environment as all its components are interconnected as “all areas of the earth, both land and sea shall be subject to these principles of conservation; special protection shall be given to unique areas, to representative samples of all the different types of ecosystems and to the habitats of rare or endangered species.”72
Moreover, the 1992 Rio Declaration adopted by the United Nations Conference on the Environment and Development addressed exclusively the issues related to the protection of the global environment and in doing so; it recognized as part of its considerations “the integral and interdependent nature of the earth” and in Principle 7 it stated with a very categorical language that “states shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem”73. As oppose to a wishful collective aspiration typical in these kinds of declarations the use of the term “shall” marks a new international approach with regards to the protection of the environment as holistic issue, recognizing that it is ultimately intertwined.
71Ragazzi M, The Concept of International Obligations Erga Omnes(Maurizio Ragazzi ed, Oxford University Press 1998)
72 United Nations, ‘World Charter for Nature’ UNGA Resolution 37/7 (28 October 1982).
73 United Nations Conference on Environment and Development, ‘Rio Declaration on the Environment and Development’ (adopted 14 June 1992) UN Doc. A/CONF.151/26 (vol. I).
15 All these international instruments are of grave importance to show how the international community has moulded its general interest to protect the environment as a whole. Although, it must be pointed out that “[o]nce a prospective norm has been formulated in soft form it can become a catalyst for the development of customary international law”74. Moreover, regarding Principle 7 of 1992 Rio Declaration in particular, it has already been referred to by the ICJ in the Gabcikovo-Nagymaros75 case and in the Nuclear Weapons Advisory Opinion76, which further shows that the “Declaration is in part a restatement of existing customary law on transboundary matters, partly an endorsement of new principles of law concerned with the protection of the global environment”77. In addition, in the specific case of the cited Principle 7 of the Rio Declaration, “it is far from being merely soft law, but can be regarded as a ‘framework principle’”78.
In this context, after having a clear general perspective of the interconnected nature of environmental law, the international community has also made a distinction between those obligations that concern all States and relate to environmental issues that go beyond the national jurisdiction and those that fall under the sovereignty of each State. Principle 21 of the Stockholm Declaration for example clearly reiterates the sovereign right of states to exploit their own resources in accordance with international law and also calls upon the “responsibility to ensure that activities within their jurisdiction or control do not cause damage to environment of other States or of areas beyond the limits of national jurisdiction”79. In this sense, there is a general will to further impose obligations to states, not only vis-à-vis other states, but also to protect any area beyond national jurisdiction.
This has been reaffirmed in the World Charter for Natures which determines that States shall “ensure that activates within their jurisdictions or control do not cause damage to
74 Chinkin Ch, ‘Normative Development In The International Legal System’, In D Shelton (ed.),
Commitment And Compliance, The Role of Non-Binding Norms In The International Legal System, 2000, Oxford University Press, p. 29.
75 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) Judgement, I. C. J. Reports 1997 [140]. 76 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Reports 1996 [27].
77 Birnie P, Boyle A and Redgwell C, International Law and the Environment (3rd ed, Oxford University Press 2009) p. 111
78 Idem, p. 135.
79 United Nations, ‘Declaration of the United Nations Conference on the Human Environment’ (adopted 16 June 1972) U.N. Doc. A/Conf.48/14/Rev. 1(1973).
16 the natural systems located within other States or in areas beyond the limits of national jurisdiction”80.
Additionally, “the United Nations established the idea of man’s common patrimony of extra-atmospheric space and the heavenly bodies (Convention on the Moon of 1979) and of the seabed and ocean floors beyond national jurisdiction (Convention of 1982). Thus, states have obligations to humankind because under the system of common patrimony; these area must be developed in the general interest”81. Since, then concept has also been developed by other binding treaties such as the 1995 Agreement on the Straddling and High Migratory Fish Stocks, the Ozone Convention and its Montreal Protocol, the UNGA Resolution 43/53 on Climate Change and the following United Nations Framework Convention on Climate Change, and in Chapter 17 of Agenda 2182, among others. There has been a consistent treaty practice referring to the issue regarding the protection of areas which fall under the concept of “common concern” and therefore have “a legal status… which is distinctively different from the concept of permanent sovereignty, common property, shared resources, or common heritage which generally determine international legal status of natural resources”83. From this, it can be drawn, that no State or person can own these spaces and resources, the use of those areas must be carried out in accordance with a system of cooperative management for the benefit of all mankind84. Also, that States shall be reserved the area for peaceful purposes and transmitted to future generations in a substantially unimpaired condition85.
2.1. Atmospheric pollution, Ozone Depletion and Climate Change
As it has been discussed one of the areas protected under the principle of ‘common concern’ is the atmosphere. No State or person can claim either jurisdiction or property
80 United Nations, ‘World Charter for Nature’ UNGA Resolution 37/7 (28 October 1982).
81 Dupuy R-J, ‘Humanity and the Environment’, 2 Colorado Journal of International Environmental Law
and Policy(1991), p. 202.
82 Birnie P, Boyle A and Redgwell C, International Law and the Environment (3rd ed. Oxford University Press 2009) p. 130.
83 Idem, p. 129-130.
84Prue Taylor, ‘The Common Heritage of Mankind: A Bold Doctrine Kept within Strict Boundaries’
<http://wealthofthecommons.org/essay/common-heritage-mankind-bold-doctrine-kept-within-strict-boundaries> accessed 14 May 2015.
85Prue Taylor, ‘The Common Heritage of Mankind: A Bold Doctrine Kept within Strict Boundaries’
<http://wealthofthecommons.org/essay/common-heritage-mankind-bold-doctrine-kept-within-strict-boundaries> accessed 14 May 2015.
17 over it and through conventional means the international community has agreed to cooperation with aim of protecting it. Moreover, since the Trail Smelter arbitration86,
States have been regarding the pollution of the environment as a problem. Although at first the atmosphere was seen only as the vehicle through which transboundary harm could be caused, it has recently evolved to have a proper legal status of its own.
The atmosphere is “the planet’s largest single natural resource, and it is indispensable for the survival of humankind”87. This reinforces the idea that environmental law has to first be seen from a holistic perspective, which as mentioned means that it is interconnected in all of its extremes; therefore States have taken upon themselves to cooperate in order to guarantee its protection, both at a regional level as at a global level. The first legally binding document to address this issue was the United Nations Economic Commission for Europe’s 1979 Convention on Long-Range Transboundary Pollution, although this treaty was focused on the possible harm that may be caused to another State and not against the atmosphere as such, independent from any State, it still included in article 3 that “the Contracting Parties… shall by means of exchanges of information, consultation, research and monitoring, develop without undue delay policies and strategies which shall serve as a means of combating the discharge of air pollutants”88. This means that it is not only important to avoid harm, but that there is an obligation to cooperate in order to better protect the atmosphere, and therefore reduce the discharge of pollutants.
Additionally, both the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water89 of 1963 and the Comprehensive Nuclear Test Ban Treaty90 of 1996 take into account the protection of the environment and contribute to the development of the protection of the atmosphere and other areas beyond the national jurisdiction of states. Although the latter has not yet entered into force, it must be noted that is was adopted by a UNGA resolution and has 163 parties to it.
86 Trail Smelter Case (United States v Canada) [1941] UN Rep Int’l Arb Awards 1905 1905, 1965. 87 Idem., p. 315.
88 United Nations Economic Commission for Europe, ‘Convention on Long-Range Transboundary Pollution’ (adopted 13 November 1979, entered into force 16 March 1983), art. 3.
89 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (adopted 5 August 1963, entered into force 10 October 1963), Article I.
18 This effort was followed by an attempt for a broader protection of the atmosphere under a more harmful substances approach. The best example of this is the Vienna Convention for the Protection of the Ozone Layer of 1985 and it’s Montreal Protocol on Substances that Deplete the Ozone Layer of 1987. The object of the Ozone Convention is:
The Parties shall take appropriate measures in accordance with the provisions of this Convention and of those protocols in force to which they are party to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer.91
From the start there was a clear mandate to protect a part of the atmosphere called the ozone layer. To this effect States are required to “cooperate in the formulation of agreed measures, procedures and standards” and are obliged to adopt policies to control activities that would have adverse effects on the ozone layer92. This clearly meant that it was an interest and common concern of the international community the protection of the ozone layer. However, the implementation of the protection of the environment with regards to the ozone layer has to be done in accordance with common but differentiated responsibility principle, which was stated in the preamble and later included in a very effective way in the Montreal Protocol.
The Montreal Protocol is a perfect example of how an area which is of ‘common concern’ to the international community is protected. It also underlines the fact that the protection of the environment beyond the national jurisdiction of the States previously established in Stockholm and Rio, although not binding was accepted by the international community as a responsibility that should be followed by binding treaties protecting those areas, in this case the ozone layer. Furthermore, besides establishing particular obligations in order to phase out chlorofluorocarbons (CFCs) and other substances which have a depleting effect on the ozone layer, it also established a compliance mechanism93 to ensure the effective protection and recovery of this element of the atmosphere.
91 Vienna Convention for the Protection of the Ozone Layer (adopted 22 March 1985, entered into force 22 September 1988) 1513 UNTS 323 (Ozone Convention) art. 2.1.
92 Idem., art. 2.2.
93 Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 16 September 1987, entered into force 1 January 1989) 1522 UNTS 3 (Montreal Protocol) art. 8.
19 This however, has not been the only element of the atmosphere approached as a collective interest, as “at the time of The Hague Conference of 1989, the international community was given the responsibility of safeguarding the atmosphere in the interest of human kind”94, therefore additional issues had to be faced in order to better protect global environment, which resulted in international action to face the consequences of climate change. This evidence furthers the interconnected nature of environmental law, especially regarding aspects that go beyond national jurisdiction which fall under the ‘common concern’ concept.
Furthermore, the scientific documentation analysed by the IPCC which to-date demonstrate the, across the board, effects of the continued pollution of the atmosphere95. Consequently, through the UN General Assembly Resolution on the
Protection of global climate for present and future generations, where it was
determined following UNGA resolution 43/53 of 6 December 198 that considered climate change a common concern of mankind, the international community agreed that States have a “role in preserving and protecting the global and regional environment in accordance with their capacities and specific responsibilities”96. Thus it became clear that the protection of the atmosphere could not only depend on the phasing-out of ozone depleting substances, but that greenhouse gases accumulated in the atmosphere had additional detrimental effect on the earth’s climate and environment.
Since then, the UNFCCC presented a different take on the protection of the atmosphere, through the stabilization of greenhouse gas concentrations in the atmosphere in order to:
prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not
94 Dupuy R-J, ‘Humanity and the Environment’, 2 Colorado Journal of International Environmental Law
and Policy(1991), p. 202.
95 IPCC got more precise regarding their situational analysis and their highly confident forecasts, which are the ocean acidification, bring a large fraction of species to extinction risk, undermine food security by redistributing marine biodiversity among others. IPCC, ‘IPCC Fifth Assessment Synthesis Report: Summary for Policy Makers’ (2014) <http://www.ipcc.ch/pdf/assessment-report/ar5/syr/SYR_AR5_SPMcorr2.pdf> accessed 20 January 2015.
96UNGA Protection of global climate for present and future generations Resolution by UNGA Resolution 44/207 (22 December 1989) This was followed by UNGA resolutions 54/222 of 22 December 1999, 61/201 of 20 December 2006, 62/86 of 10 December 2007 and 63/32 of 28 January 2009.
20 threatened and to enable economic development to proceed in a sustainable manner.97
Such an agreement definitely evidences how the international community is working to cover all the issues that affect the atmosphere as a whole. Although, at the beginning contained fairly voluntary commitments98, with the Kyoto Protocol “[t]he key feature…is the establishment, for the first time, of quantitative restrictions on emissions from industrialized economies. These states-listed in Annex B of the Protocol- are limited in their emissions of the six greenhouse gases listed in Annex A as stated in Article 3(1) KP”99.
As successive conventions show how the protection of the atmosphere has become a ‘common concern’ and as an obligation it is owed to the international community as a whole, this has also been referred to in a few claims and decisions. As seen above, during the proceeding in the case between New Zealand and Australia against France regarding the legality of atmospheric nuclear tests in the South Pacific region, both Australia and France claimed that those tests affected the environment and the rights of the international community as a whole. Although the claim was not addressed by the ICJ in its decision, it can certainly evidence States interest for the global protection of the atmosphere100.
Moreover, the atmosphere was also referred to in the 1996 Advisory Opinion of the ICJ regarding the Legality of the use of Nuclear Weapons, where it stated:
The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national jurisdiction is now part of the corpus of international law relating to the environment.101
97 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM 849 (1992). Art. 2.
98 “These countries are required to formulate programs containing measures to mitigate climate change (art. 4.1(b) UNFCCC), but this obligation is not accompanied by a binding obligation to implement these programs” in Lefeber René, Climate change and State Responsibility , International Law in the Era of Climate Change (Edward Elgar Publishing Ltd 2012) 330.
99 Birnie P, Boyle A and Redgwell C, International Law and the Environment (3rd ed. Oxford University Press 2009) p. 130.
100 Nuclear Tests case (Australia v. France) (Interim Measure) 1973 ICJ Reports 99; (Jurisdiction) 1974 ICJ Reports 253; (New Zealand v. France) (Interim Measures) 1973 ICJ Reports 135
101 As quoted by Murase Shinya, Protection of the Atmosphere, in ILC, Report of the International Law Commission on the Work of its 66th Session (26 April- 3 June and 4 July -12 August 2011) UN Doc. A/66/10, Annex B, p. 316.
21 This clearly signifies that there is continuous link between the general interests of States to safeguard the environment beyond their national jurisdiction vis-à-vis areas regarded as common concern of mankind and the formation of such an obligation in customary international law. Furthermore, in the Pulp Mills case between Argentina and Uruguay the issue of air pollution was also addressed due the possible effect on the water of the river102. All of these where included in the report presented by current Specials Rapporteur of the ICL assigned with the issue of the protection of the atmosphere which was just recently included in the agenda of the ILC.103
This recent development at the ILC only reaffirms the fact that there is an interest for the protection of the atmosphere, which is based on treaty law and case law. It also exposes the obstacles of the current fragmented nature of the protection of the atmosphere, which in the words of the Special Rapporteur is:
The incremental approach has its particular limitations for the protection of the atmosphere, which by its very nature warrants holistic treatment in the form of a framework convention by which the whole range of environmental problems of the atmosphere could be covered in a comprehensive and systematic manner.104 As it can observed above there is clear evidence that as part of the protection of the global environment, there is an interest from organs of the United Nations to protect the atmosphere in an integral manner, due to its common nature.
2.2. The High Seas and deep seabed
In the Report presented by Shinya Murase to argue in favour of drafting an agreement related to the protection of the atmosphere it was stated that:
the present proposal envisages an instrument similar to Part XII of the United Nations Law of the Sea Convention (UNCLOS) on the Protection and the Preservation of the Marine Environment.105
Additional to the protection of the marine environment established in Part XII of UNCLOS, there is also a specific part dedicated entirely to the regulation of the high seas. Part VII of UNCLOS includes the provisions which establishes that the “high seas
102 Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Reports [264]
103 ILC, Report of the International Law Commission on the Work of its 65th Session (6 May to 7 June and 8 July to 9 August 2013) UN Doc. A/68/10 [168].
104 Murase Shinya, Protection of the Atmosphere, in ILC, Report of the International Law Commission on the Work of its 66th Session (26 April- 3 June and 4 July -12 August 2011) UNDoc. A/66/10, Annex B, p. 317.
105 Murase Shinya, Protection of the Atmosphere, in ILC, Report of the International Law Commission on the Work of its 66th Session (26 April- 3 June and 4 July -12 August 2011) UNDoc. A/66/10, Annex B, p. 317.
22 shall be reserved for peaceful purposes”106 and that “no State may validly purport to subject any part of the high seas to its sovereignty”107. As a result, there are also provisions that seek to protect the living resources that habit that part of the ocean. This has been mainly translated into a general obligation to cooperate and a duty to protect the marine environment, including the high seas.
This obligation, which has been crystalized in article 192 of UNCLOS, has its origin in the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 1972 (London Dumping Convention) and the International Convention for the Prevention of Pollution from Ships (MARPOL) of 1973. Moreover, it has also been developed profusely at a regional level108. Therefore is could be affirmed that “the environmental provisions of the 1982 UNCLOS suggest that its articles on the marine environment are supported by a strong measure of opinio iuris and represent an agreed codification of existing principles which have become part of customary law”109. Additionally, in accordance with article 194 (5) the duty to protect the environment must encompass “[r]are or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life”.110
This shows the clear holistic environmental approach of the international community, which grants the seas with a protected status and consequently assumes the responsibility for its protection, not just within the areas controlled by States, but
106 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, art. 88.
107 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, art. 89.
108 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSTAPAR Convention) 1992; Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention) 1992; Convention on the Protection of the Black Sea against Pollution 1992; Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region 1983; Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (Nairobi Convention) 1985; Convention for the Protection and Development of the Marine Environment and Coastal Region of the Mediterranean Sea (Barcelona Convention) 1976; Convention for the Protection of Natural Resources and Environment of the South Pacific Region 1986; Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific 1981; Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region 1981; Framework Convention for the Protection of the Caspian Sea 2003; Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution 1978; and Regional Convention for the Conservation of the Red Sea and the Gulf of Aden Environment 1982.
109 Birnie P, Boyle A and Redgwell C, International Law and the Environment (3rd ed. Oxford University Press 2009) p. 387.
110 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, art. 194 (5).
23 beyond those areas, as including the high seas and the deep seabed. Article 235 (1) is evidence of this as it determines that “States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment”111. Furthermore, the high seas are a global common over which no State has jurisdiction or control, which means that in principle is the main area to explore when considering the existence of obligations erga omnes relating to the protection of the marine environment. Indeed, certain trends in the procedural and substantive law of the sea confirm this assumption.112
Additionally, in accordance with UNCLOS in cases of marine pollution over areas of common concern there is a clear responsibility that falls upon the flag State113. Regarding the port States and responsibility for pollution over the high seas, article 218 clearly establishes that have jurisdiction to discharge those violations of “applicable international rules and standards through the competent international organization or general diplomatic conference”114. Therefore, port States are also irremediably linked to any breach that could occur on the high seas and have a direct duty to prevent the pollution of those areas that are well beyond their control. This is evidence of a direct obligation that reaffirms that is consistent with the development of an erga omnes obligation to protect the environment.
On the other hand, the duty to protect the marine environment was also developed in the Seabed Disputes Chamber, where in its Advisory Opinion on the responsibility and obligations of States sponsoring persons and entities with respect to activities in the Area, determined that:
180. No provision of the Convention can be read as explicitly entitling the Authority to make such a claim. It may, however, be argued that such entitlement is implicit in article 137, paragraph 2, of the Convention, which states that the Authority shall act “on behalf” of mankind. Each State Party may also be entitled to claim compensation in light of the erga omnes character of the
111 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, art. 235 (1).
112 Maurizio Ragazzi, The Concept of International Obligations Erga Omnes(Maurizio Ragazzi ed, Oxford University Press 1998) p. 162.
113 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, art. 94.
114 Fitzmaurice, Malgosia A.. "The developments of new concepts and principles (293)." Collected
Courses of the Hague Academy of International Law. The Hague Academy of International Law. 166 <http://referenceworks.brillonline.com/entries/the-hague-academy-collected-courses/the-developments-of-new-concepts-and-principles-293-ej.9789041118554.009_488.5>
24 obligations relating to preservation of the environment of the high seas and in the Area.115
In other words, not only is there a duty to protect regarding the deep seabed, but that duty is owed to the international community as a whole, making the protection of the marine environment a common concern of mankind. This was the result of various UN General Assembly Resolutions as follows:
the General Assembly passed Resolution 2467A, 34 which created a Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction (‘Seabed Committee’). The Seabed Committee drafted a number of resolutions, the most important being Resolution 2574D and Resolution 2749.116
Among the various resolutions that addressed the protection of the deep seabed, the Seabed Committee at the time passed Resolution 2574D117 which established a moratorium that classified the area as beyond the sovereignty and jurisdiction of any State and prohibited its exploitation. Although, this later changed as UNCLOS entered into force, the strict protection of the seabed under supervision of the International Seabed Authority of behalf of mankind, only reiterates the nature of the protection of areas which are of common concern. More so if the international community has explicitly prohibited, in accordance to articles 309 and 311(6) of UNCLOS the elaboration of reservations and amendments.
In sum, both the high seas and the seabed fall under the duty to protect the marine environment. As regards to the obligation, there is both a rigid control and supervision in the case of the deep seabed, which falls under the International Seabed Authority118 and there are also obligations cooperate119. Nevertheless, they should be both understood as part of the duty to protect the marine environment, as in both cases the
115 Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in
the Area (Advisory Opinion) 2011 SCB-ITLOS
<https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf > accessed 18 April 2015 [180].
116 Edward Guntrip, ‘The Common Heritage of Mankind: An Adequate Regime for Managing the Deep Seabed?’ 6 <https://www.law.unimelb.edu.au/files/dmfile/downloadaf021.pdf> accessed 18 April 2015. 117 GA Res 2574D (XXIV), UN GAOR, 24th session, UN Doc A/RES/2574 (XXIV) (1969).
118 “All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act. These resources are not subject to alienation. The mineral recovered from the Area, however, may only be alienated in accordance with this Part and the rules, regulations and procedures of the Authority”. United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, art. 137 (2).
119 See The Mox Plant case (Ireland v. United Kingdom) (Order) 2001 ITLOS <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_10/Order.03.12.01.E.pdf> accessed 18 may 2015 [82]
25 UNCLOS is clear in stating that States have a due diligence obligation to take all necessary measures, be it to protect the deep seabed or the high seas environment.
In this sense, UNCLOS “[a]s with other treaties it makes reference to the need to take ‘all measures necessary’ to prevent and control pollution damage to other states, but moderates this requirement by allowing use of the ‘best practical means at their disposal and in accordance with their capabilities’ where the risk if to the marine environment in general, rather than to other states”120.
First, it must be understood that UNCLOS has to be seen together with the agreements regarding the protection of its living resources, as it is not enough to protect the ecosystem as a whole. To this effect for example the United Nations General Assembly adopted the Agreement for the implementation of the provision of the UNCLOS relating to the conservation and management of straddling fish stocks and highly migratory fish stocks121 in the understanding that the exploitation of this living resource can recoil over the rest of the marine environment and also affect other States enjoyment of this resource:
adopt, where necessary, conservation and management measures for species belonging to the same ecosystem or associated with or dependent upon the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened;122
In addition, regarding the reasonable exploitation of living resources, in particular fish stocks, there have been other efforts to actively protect other marine living resources. For example, there is a special provision regarding the conservation of the living resources of the high seas and for the conservation of marine mammals which in accordance with article 65 of UNCLOS provides that States shall cooperate with a view to their conservation. In addition, the Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas (ASCOBANS)123, the
120 Birnie P, Boyle A and Redgwell C, International Law and the Environment (3rd ed. Oxford University Press 2009) p. 389.
121 United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, Sixth Session (1995).
122 United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, Sixth Session (1995), Art. 5 (e).
123 2.1. The Parties undertake to cooperate closely in order to achieve and maintain a favourable conservation status for small cetaceans. (ASCOBAN).
26 Convention for the Conservation of Migratory Species of Wild Animals (CMS)124, the International Convention for the Conservation of Atlantic Tunas (ICCAT)125 and the International Convention for Regulation of Whaling (Whaling Convention)126, all which are also added to the Convention on Biological Diversity and Chapter 17 of UNCED Agenda 21127.
Furthermore, “clearly, each agreement is relevant for the purpose of interpreting the other. Equally clearly, the increasingly devastating effect of unsustainable fishing practices on marine biodiversity and ecosystems is a matter that directly affects the CBD”128. As can see although fragmented, there is a common thread that joins international environmental law, especially regarding those areas and resources beyond national jurisdiction. Moreover, this obligation is characterized in the present case by a common duty to cooperate between all States, however this is not an obligation of result but of conduct in every convention cited regarding the measures that have to be taken. Only in special cases, such as the whale, which in accordance with the preamble of the Whaling Convention, should be “protected in the interest of the nations of the world”, a general “moratorium on the killing or treating of whales, except minke whales, by factory ships or whale catchers attached to factory ships” through the Schedule of the International Whaling Commission. Besides the cited case, there is a general obligation to cooperate in order to protect the marine environment, which in no way undermines the bind nature of the obligation which is present in the cited treaties.
2.3. Protection of Antarctica
124 Article II (1) The Parties acknowledge the importance of migratory species being conserved and of Range States agreeing to take action to this end whenever possible and appropriate, paying special attention to migratory species the conservation status of which is unfavourable, and taking individually or in co-operation appropriate and necessary steps to conserve such species and their habitat. (CMS) 125 Article IX (3) The Contracting Parties undertake to collaborate with each other with a view to the adoption of suitable effective measures to ensure the application of the provisions of this Convention and in particular to set up a system of international enforcement to be applied to the Convention area except the territorial sea and other waters, if any, in which a state is entitled under international law to exercise jurisdiction over fisheries. (ICCAT)
126 Article VII The Contracting Government shall ensure prompt transmission to the International Bureau for Whaling Statistics at Sandefjord in Norway, or to such other body as the Commission may designate, of notifications and statistical and other information required by this Convention in such form and manner as may be prescribed by the Commission. (International Convention for the Regulation of Whaling).
127 Report of the UNCED, UN Doc A/CONF 151/26/REV 1, Vol I (1992) in Birnie P, Boyle A and Redgwell C, International Law and the Environment (3rd ed. Oxford University Press 2009) p. 745.
27 Similar to the deep seabed Antarctica is a very good expression of the general interest to protect as far as possible an ecosystem that lies beyond the national jurisdiction of States. In this sense, since 1959 the Antarctic Treaty was in force, which as opposed to UNCLOS did not categorically reject sovereign claims over Antarctica, but still declared in the Preamble the recognition “that it is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord” this was also established under Article 1 (1), which went as follows, “Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military manoeuvres, as well as the testing of any type of weapons.” Apart from the cited provisions only Article V addresses the protection of the Antarctic environment by referring to the prohibition of nuclear explosions and disposal of radioactive waste. However, after the Protocol on Environmental Protection of the Antarctic, the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)129 and the Convention for the Conservation of Antarctic Seals (CCAS)130, environmental issues where finally directly addressed. The Preamble of the Protocol on Environmental Protection provides direct light on grounds of such a protection:
Convinced that the development of a comprehensive regime for the protection of the Antarctic environment and dependent and associated ecosystems is in the interest of mankind as a whole;131
As in the deep seabed, that the protection of this ecosystem represented the general interest of the international community as a whole, so once again, although not a bind clause, it is clear that mankind is a subject in the treaty. This is also recognised in article 2 of the Protocol132, where the value of Antarctica for the global environment is highlighted. Moreover, it encompasses adverse effects on climate or weather patterns; significant adverse effects on air or water quality; significant changes in the atmospheric, terrestrial (including aquatic), glacial or marine environments; detrimental
129 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), (adopted 20 May 1980, entered into force 07 April 1982) 19 ILM 841 (1980).
130 Convention for the Conservation of Antarctic Seals (CCAS), (adopted 01 June 1972, entered into force 11 March 1978) 11 ILM 251 (1972).
131 Protocol on Environmental Protection to the Antarctic Treaty (adopted 04 October 1991; entered into force 14 January 1998) 30 ILM 1455 (1991), Preamble.
