Role of International Courts in Developing Marine Environmental Law

The Role of International
Courts in the Development
of International Marine
Environmental Law
Chloe Wenman (cgwenman@gmail.com)

Chloe Wenman (LLM)
• LLM International Law (focusing on
International Environmental Law and
International Law of the Marine Environment)
• BA Politics
• Currently undertaking independent consultancy
in environmental law and policy
• Particularly interested in ABNJ marine law and
wildlife trade law

Unexplored territory…

Roadmap
• Which courts are we talking about?
• How do courts develop law?
• 6 significant cases
• How do they develop legal concepts such as:
 Precautionary approach
 Due diligence
 Environmental Impact Assessments (EIAs)
 Erga omnes obligations
 Balance between environmental justice and social
justice

• Southern Bluefin Tuna Cases (Australia and New Zealand v. Japan)
• Whaling in the Antarctic (Australia v. Japan with New Zealand
intervening)
• ITLOS Advisory Opinion on Deep Seabed Mining
• ITLOS Advisory Opinion on Fishing
• Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom)
• South China Sea Arbitration (The Republic of the Philippines v. The
People’s Republic of China)
6 Cases

International Tribunal for the Law of the
Sea (Hamburg, Germany) (ITLOS)
The Peace Palace (The Hague, Netherlands)
- International Court of Justice (ICJ)
- Permanent Court of Arbitration (PCA)

How can courts develop law?
• Apply and interpret existing sources of law
• Decisions bind entire international community
• Clarification and exposition of the law

Fluid evolution
• Decisions must be consistent and flexible – to accommodate
evolving state practice
• Law-making effect is contingent on response of international
community
 Perceived legitimacy of court
 Belief in reciprocal value of system

Southern Bluefin Tuna Cases
(Australia and New Zealand v. Japan)
ITLOS, 1999
Enter the precautionary approach...

Background
- Southern Bluefin Tuna (SBT) has been extremely overfished
- 1993 - Australia, New Zealand and Japan established the Convention for the
Conservation of Southern Bluefin Tuna and agreed a total allowable catch
(TAC) for each country
- 1998 - Japan unilaterally began ‘experimental fishing’ in the Southern Indian
Ocean
- Japan claimed that there was no risk of “irreparable damage”

Findings
Regarding “no irreparable damage”:
- In relation to the marine environment, scientific evidence does not usually
have the exactness required to enable irreparable harm to be shown at the
time
- The ITLOS encouraged the parties to act with “prudence and caution” in order
to ensure conservation of marine life.
Implicitly applied the precautionary approach

Legal significance
- Application of the precautionary principle was unprecedented - a sign that it
was now customary international law?
Threshold for precautionary approach was later determined in MOX Plant Case
(UK vs. Ireland), 2001
- Regarded the conservation of the living resources of the sea as an element in
the protection and preservation of the marine environment

Whaling in the Antarctic
(Australia v. Japan:
New Zealand Intervening)
ICJ, March 2014
“Scientific research”...?

Background
- All 3 states are party to the International Convention on the Regulation of
Whaling (ICRW)
- 1982 - International Whaling Commission (IWC) banned all whaling APART
FROM some indigenous whaling and scientific research
- 1994 - IWC established Southern Ocean Whale Sanctuary - no whaling at all
allowed here
- 2005 - Japan began a whaling program (JARPA II) inside the Southern
Ocean Sanctuary - under the guise of scientific research
- 450 minke whales were killed annually under JARPA II

Findings
- The dispute turned on the interpretation of scientific research
- The ICJ found that important aspects of the JARPA II design and
implementation (e.g. lethal take) were not reasonable in relation to its
research objectives
- Japan must halt its current whaling programme in the Southern Ocean

Legal significance
- Australia represented the international community - is conservation of
common resources an obligation erga omnes (obligation to international
community)?
- Although it resulted in a temporary pause in Japanese whaling in the
Southern Ocean, Japan resumed whaling in late 2015
- Cultural values must evolve in line with sustainable development

ITLOS advisory opinion on deep seabed
mining
Responsibilities and obligations of States sponsoring persons
and entities with respect to activities in the Area
Seabed Disputes Chamber, ITLOS, February 2011

Background
- April 2008 - Nauru and Tonga put forward a proposal for activities in reserved
areas of the seabed
- Nauru requested an advisory opinion from the ITLOS Seabed Disputes
Chamber regarding the extent of the liabilities of a state sponsoring seabed
mining in international waters
- Concern = if a sponsoring state could not mitigate its potential liabilities,
developing states would effectively be precluded from taking part

Findings
- States have an obligation of conduct rather than result (obligation of due diligence)
- Not currently strict liability
- Developing states have the same obligations of environmental protection as developed
states
- This principle of equality is paramount - otherwise there could be a rise of ‘sponsoring
states of convenience’, endangering environmental protection principles.

Legal significance
- Confirms the erga omnes character of the obligation to protect the marine
environment of high seas and the Area
- The precautionary approach is integral to due diligence - again solidifying
its place in customary law

ITLOS advisory opinion on fishing
Request for an Advisory Opinion Submitted by the Sub-
Regional Fisheries Commission
ITLOS, 2 April 2015Chloe Wenman (cgwenman@gmail.com)

Background
- The Sub-Regional Fisheries Commission (SRFC) (fisheries
commission comprising 7 West African states) requested an advisory
opinion in relation to Illegal Unregulated and Unreported (IUU) fishing
in EEZs of other states
- Most fisheries in the region are fully or over-exploited

Findings
Flag states have a due diligence obligation of conduct to ensure the
vessels flying its flag are not involved in IUU fishing

Legal significance
- Re-emphasised connections between managing marine living
resources and marine environmental protection
- Detail on flag state responsibility may allow SRFC member states to
exert greater pressure on flag states engaging in IUU fishing.

Environmental protection or fishing rights?
Chagos Marine Protected Area
Arbitration
(Mauritius v. United Kingdom)
PCA, 18 March 2015

Background
- UK owned Archipelago as part of its then-colony, Mauritius
- 1965 - the archipelago was separated from Mauritius and declared British
Indian Ocean Territory - to be returned to Mauritius when no longer
needed for defence purposes
- 1968 - Mauritius independent
- Chagossians living in the archipelago were relocated to make way for a
US military base
- 2010 - UK declared an MPA around the archipelago
- Mauritius launched legal challenge

Findings
- No jurisdiction over sovereignty of archipelago, but...
- Mauritius holds legally binding rights to fish in the waters
- “in declaring the MPA, the United Kingdom failed to give due
regard to [Mauritius’s] rights and declared that the United
Kingdom had breached its obligations under the Convention.”

Legal significance
Environmental justice (e.g. an MPA) must be
balanced with social justice (e.g. livliehoods)

South China Sea Arbitration
THE REPUBLIC OF THE PHILIPPINES
v.
THE PEOPLE’S REPUBLIC OF CHINA
PCA, 12 July 2016
Above the law?

Background
- The South China Sea is thought to have significant oil and gas reserves, has giant fisheries and
lanes for half of all commercial shipping
- China claimed ‘historical rights’ and asserted sovereignty over 90% of the sea - the ‘nine-dash-
line’
- Areas are contested by Vietnam, Taiwan, Malaysia, Brunei, the Philippines and Japan
- Philippines claimed that 1) Chinese vessels have been harvesting endangered species using
destructive methods and that 2) China has been progressively reclaiming islands from the sea
and building on them for military purposes

Findings
(regarding the marine environment!)
- Looked at wider international environmental law, e.g. Convention on International Trade in
Endangered Species (CITES)
- ‘the environmental obligations in Part XII apply to States irrespective of where the alleged harmful
activities took place.’
- Article 192 imposes a due diligence obligation to prevent the harvesting of endangered species and
to prevent indirect harm through the destruction of their habitat
- China had tolerated and provided protection to the poaching activities of its nationals
- Art. 192 also imposes a positive duty to ‘prevent, or at least mitigate, significant harm to the
environment when pursuing large-scale construction activities.’
- Did not communicate an EIA

Legal significance
- Valuable interpretation of key provisions in UNCLOS relating to the marine
environment and clarification that certain practices are in violation of UNCLOS
- "Nothing more than a piece of paper”?
- What can be done if China ignores the ruling?
- Another reason for the US to ratify UNCLOS?

Role of International Courts in Developing Marine Environmental Law

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