Alexander Proelss

Naturschutz im Meeresvölkerrecht

Section: Treatises
Archiv des Völkerrechts (AVR)

Volume 54 () / Issue 4, pp. 468-492 (25)

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This article analyzes the sources of international marine conservation law and its development in the jurisprudence of international courts and tribunals. It demonstrates that the 1982 United Nations Convention on the Law of the Sea (UNCLOS) already contains certain conservation-oriented elements in its Part XII addressing the protection and preservation of the marine environment. The International Tribunal for the Law of the Sea (ITLOS) confirmed as early as 1999 that the obligations of States codified therein are not only applicable to the prevention and abatement of pollution of the seas by the introduction of harmful substances and energy, but also to the management of the living resources and the conservation of marine species and areas. In recent years, the ITLOS, together with Arbitral Tribunals established on the basis of Annex VII to the UNCLOS, have taken an increasingly dynamic approach to the interpretation and application of Part XII UNCLOS. By interpreting and applying the Convention in terms of a living instrument, they have contributed to a strengthening of its conservation-oriented imprint in respect of both areas within and beyond the limits of national jurisdiction. These tribunals have accepted broad range of international environmental protection principles, from a fundamental duty to cooperate in the prevention of pollution of the marine environment to the precautionary approach and the procedural duties of information, consultation and to undertake an environmental impact assessment. Furthermore, the ITLOS has addressed the challenge of illegal, unreported and unregulated (IUU) fisheries by deducing from the pertinent provisions of the UNCLOS a duty of flag States to ensure that their vessels, if and to the extent to which they are involved in fisheries activities within the area of competence of a regional fisheries management organization, abide to the conservation and management measures adopted by the member States of this organization. This case-law has set an important benchmark concerning the current deliberations on a future international legally binding instrument on the protection and sustainable use of marine biodiversity in areas beyond national jurisdiction. This article further explores the development of the comparatively general requirements contained in the UNCLOS, by other international treaties. Indeed, a closer analysis reveals that international marine conservation law is characterized by its multilevel and -faceted nature, linking issues regulated under the international law of the sea with aspects governed by multilateral environmental agreements, as well as the law of the European Union and domestic law. Taking into account the different legal traditions and approaches on which these sub-systems of the law are based, this complex structure involves the risk of regime collisions which, again, could jeopardize the effective implementation, compliance with and enforcement of the pertinent obligations. Against this backdrop of different legl traditions, the second part of the article discusses potential pathways for the prevention and dissolution of potential regime collisions. In this respect, particular attention is paid to the general rules of dynamic interpretation.

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