Marine Environmental Law Cases presentation

The Role of International Courts in the

Development of International Marine Environmental Law

Chloe Wenman ([email protected])

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”


FindingsRegarding “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”...?Chloe Wenman ([email protected])

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 ([email protected])

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 challengeChloe Wenman ([email protected])


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 2016Above 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 applyto 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?


Documents

Marine Environmental Law Cases presentation