10.1 Introduction
The United Nations Convention on the Law of the Sea (UNCLOS or Convention)Footnote 1 is an international treaty among an excessive number of subjects of international law. These 168 subjects have committed themselves to adhere to international law established in the (almost) comprehensive system codified in the 320 articles and nine annexes.Footnote 2 The Convention strives to provide answers on ‘all issues relating to the law of the sea’.Footnote 3 Hence, it is more than an ordinary convention – it is ‘an international state of mind and a commitment to the rule of law’.Footnote 4 Accordingly, one may argue, the Convention reproduces a commitment ‘to uphold legal order and stability, to provide equality of application of the law, … and to settle disputes before an independent legal body’.Footnote 5
More than two-thirds of the Earth is covered by seas and oceansFootnote 6 with about 90 per cent of the living biomass.Footnote 7 This living biomass, in particular fish, is of importance as a source of food (e.g., as a protein source) and raw materials.Footnote 8 As set out in the preamble of the UNCLOS, one of the Convention’s objectives intends the ‘equitable and efficient utilization’ of the seas and oceans and ‘conservation of their living resources’.Footnote 9 Nonetheless, stocks fished at a ‘biologically unsustainable level’ increased from 10 per cent in 1974 to almost 35 per cent in 2017.Footnote 10 Thus, from a bird’s eye view, it seems that the Convention’s impact is rather lean in respect of living resources.Footnote 11
One way to counter such developments is the application of the precautionary principle/approach. Whilst the principle/approach is no stranger to, for example, the 1995 United Nations (UN) Fish Stocks Agreement,Footnote 12 the 1982 UNCLOS does not demand application of the precautionary principle/approach expressis verbis. Concluded after the UN Conference on the Human Environment (1972), but long before the UN Conference on Environment and Development (1992), the specific requirements of the precautionary principle/approach were not subject to a general scientific debate during the negotiations for the UNCLOS.Footnote 13
More than 20 years ago, in the Southern Bluefin Tuna cases (SBT cases), the International Tribunal for the Law of the Sea (ITLOS) laid the cornerstone with respect to the precautionary principle/approach.Footnote 14 In the SBT cases between the States of Australia, New Zealand and Japan, both the ITLOS and an ad hoc arbitral tribunal (SBT Tribunal) (constituted in accordance with Annex VII of the UNCLOS) were confronted with Australia’s and New Zealand’s claims regarding the ‘precautionary principle’.Footnote 15 Due to both tribunals’ lack of jurisdiction with respect to the merits, they were unable to discuss the management of Southern Bluefin Tuna in detail. However, the ITLOS, whilst prescribing provisional measures, hinted broadly at the requirement of the precautionary application under the UNCLOS. It prescribed that the parties should act with ‘prudence and caution’, which may be seen as ‘equivalent to [act] by applying a precautionary approach’.Footnote 16
This chapter therefore undertakes an expedition through the UNCLOS, analysing its relationship with the precautionary principle/approach and addressing the two decades after the SBT cases and respective developments. This journey seeks to answer one question only:
Does the UNCLOS demand application of the precautionary principle/approach with respect to management of living resources vel non?
In answering this question, this chapter will briefly turn to the general notions of the precautionary principle/approach and management of living resources (2). Building on this, the most relevant provisions of the Convention and the corresponding jurisprudence are analysed (3).
10.2 Precautionary Principle/Approach, Management of Living Resources
10.2.1 The Notion of the ‘Precautionary Principle/Approach’
Countless books, articles and judgments of national and international courts address the precautionary principle/approach. As law serves to set clear expectations regarding rights and obligations,Footnote 17 it is neither the intention nor a requirement to reproduce these colossal findings – it will suffice to identify the core elements of the principle/approach as a benchmark for the analysis of the UNCLOS in this chapter.
The scope of the precautionary principle/approach is broad, and no universal definition exists.Footnote 18 The precautionary principle and precautionary approach are often used interchangeablyFootnote 19 and even if not, there is no clear-cut differentiation.Footnote 20 As no significant legal relevance to the distinction may be identified,Footnote 21 hereinafter the term ‘precautionary principle’ is used, including the idea of an approach.Footnote 22
The so-called Rio Declaration’s Principle 15 and its underpinning definition can be regarded as accepted by a broad spectrum,Footnote 23 stating ‘[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’.Footnote 24 In light of many similar international instruments,Footnote 25 three elements may be deduced: a threat of environmental harm, scientific uncertainty and action despite uncertainty.Footnote 26 Accordingly, a threat of environmental harm bundled with scientific uncertainty ‘triggers’ precautionary actions.Footnote 27
As a side note, the features beyond the Rio Declaration ascribe and stipulate that the principle may be limited to mere authorization/legitimization to take measuresFootnote 28 or go as far as having effects on the burden or standard of proof.Footnote 29
10.2.2 The Notion of ‘Living Resources’
Lacking a definition by the UNCLOS, two dominant views address the question of living resources. The first calls for a broad scope emphasizing ‘living’ as a differentiation from ‘non-living’Footnote 30 to include all marine living resources, for example, corals and birds.Footnote 31 The second and narrower view relies on resources ‘prone to exploitation for economic reasons’.Footnote 32 The latter view can be considered predominantFootnote 33 and, therefore, is adopted in this chapter; thus, primarily fish, cuttlefish, cetaceans, pinnipeds and sirenians comprise living resources.Footnote 34
10.2.3 The Notion of ‘Management’
Despite also being undefined in the UNCLOS, management may reflect ‘human intervention in the dynamic processes … to maintain a particular desired pattern or series of processes’.Footnote 35 To ‘manage one or more species of living marine resources’ can be considered a management measure.Footnote 36
‘Management’ is often used together with ‘conservation’ but cannot be equated to it.Footnote 37 The World Conservation Strategy defines the latter as ‘the management of human use of the biosphere …’,Footnote 38 combining both notions. Management has further been defined by, for example, Article 2 of the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas 1958Footnote 39 as ‘the aggregate of the measures rendering possible the optimum sustainable yield … to secure a maximum supply of food and other marine products’.
In sum, ‘management’ should be understood broadly so as to encompass human activities in general, including conservation measures.
10.3 The Precautionary Principle in Regard to the Management of Living Resources ‘within’ the UNCLOS
10.3.1 Part V, Part VII and Article 290(1) UNCLOS
Judge Laing, in his separate opinion in the SBT cases, articulated ‘it cannot be denied that [the UNCLOS] adopts a precautionary approach’.Footnote 40 Hereby, the approach will be envisaged in Part V (Exclusive Economic Zone), Part VII (High Seas) and Article 290 (1) UNCLOS.Footnote 41
Regarding Article 290(1) UNCLOS, the possibility to prescribe provisional measures ‘to prevent serious harm to the marine environment’ ‘underscores the salience of the [precautionary] approach’.Footnote 42 Judge Treves also stated that ‘a precautionary approach seems … inherent in the very notion of provisional measures’.Footnote 43 Further, he suggested in the particular SBT cases that the requirement of ‘urgency’ in Article 290(5) UNCLOS ‘is satisfied only in the light of such precautionary approach’.Footnote 44
The question, however, is whether application of the precautionary principle is demanded. This seems not to be the case as courts and tribunals are not obliged to prescribe provisional measures.Footnote 45 They are, rather, provided with the possibility to do so.Footnote 46 In any event, it seems doubtful whether provisional measures are the appropriate stage for applying the precautionary principle.Footnote 47 Therefore, Article 290 UNCLOS need not be further addressed.Footnote 48
Addressing Part V and Part VII, the UNCLOS establishes a far-reaching system of marine resource management.Footnote 49 This system may be divided into a direct approach (addressing the living resource itself) and an indirect approach (addressing their habitat).Footnote 50 Further, it may be distinguished between a zonalFootnote 51 and a species-specificFootnote 52 management approach. However, not many arguments have been voiced regarding demand for application of the principle by the UNCLOS under Part V and Part VII.Footnote 53
10.3.2 Part XII UNCLOS
Beyond Judge Laing’s claim, the UNCLOS is influenced by concepts such as sustainable development,Footnote 54 ecosystem-based approachesFootnote 55 and the precautionary approach. Whether the latter is incorporated in protection and preservation of the marine environment regime (Part XII) has been subject to debate in recent years.Footnote 56
The UNCLOS does not define ‘protection and preservation’, or ‘marine environment’ as prescribed by Article 192 UNCLOS. Deriving from its heading and the overwhelming number of pollution-based provisions, Part XII might appear as limited to the prevention, reduction and control of pollution. Such assumption is reaffirmed by abstaining from using the wording ‘conservation’, as otherwise mostly utilized in connection with living resources.Footnote 57 However, Article 194(5) UNCLOS hints at an ecosystem and habitat focus.Footnote 58 In the SBT cases, the ITLOS stated that ‘the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’.Footnote 59 In 2015, it confirmed this finding in its Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC AO).Footnote 60 Thus, Part XII must be regarded as (indirectly) applying to the management of marine living resources.Footnote 61
10.3.2.1 The Precautionary Principle and Due Diligence/Obligations of Conduct
Taking one step back, in the 2010 Pulp Mills case, the International Court of Justice (ICJ) held ‘that the principle of prevention, as a customary rule, has its origins in the due diligence’.Footnote 62 The Seabed Disputes Chamber in its 2011 Responsibilities and obligations of States with respect to activities in the Area advisory opinion (Seabed Mining AO) took this one step further.Footnote 63 The Chamber noted that ‘the precautionary approach is also an integral part of the general obligation of due diligence’, that due diligence and obligations of conduct are interrelated and the precautionary principle applies outside the International Seabed Authority’s Regulations.Footnote 64 Further, the ITLOS linked due diligence and the precautionary principle in its SBT cases.Footnote 65 Although these cases do not deal with living resources, it may be noted that the overall concept of due diligence may include application of precaution/the precautionary principle.Footnote 66
10.3.2.2 Due Diligence/Obligations of Conduct under the UNCLOS
Arguably, the idea of due diligence is reflected in the jurisprudence as early as the SBT cases.Footnote 67 The ITLOS determined that ‘although the Tribunal cannot conclusively assess the scientific evidence presented by the parties’, they should ‘act with prudence and caution … to prevent serious harm to the stock of southern bluefin tuna’.Footnote 68 Thus, in light of scientific uncertainty, the ITLOS ordered the parties to act with ‘prudence and caution’.Footnote 69
The ITLOS reaffirmed this notion of ‘prudence and caution’ in its MOX Plant case.Footnote 70 It considered employing it to require cooperation of the disputing parties.Footnote 71 The duty to cooperate ‘is a fundamental principle in the prevention of pollution of the marine environment under Part XII’.Footnote 72 Judge Treves, in a separate opinion, hinted that procedural rights, including obligations to cooperate, may be ‘relevant for complying with the general obligation of due diligence’ in regard to environmental impacts.Footnote 73 This seemingly applies a principle of international (environmental) law, that is, the cooperation principle; and links ‘prudence and caution’ to that principle.Footnote 74
The Seabed Mining AO determined that the ‘responsibility to ensure’ in Article 139(1) UNCLOS is one of conduct and of due diligence,Footnote 75 that is, a ‘due diligence to ensure’.Footnote 76 Such diligence has flexible content and may change over time as measures ‘may become not diligent enough’.Footnote 77 This entails all measures necessary, hence, all adequate means.Footnote 78 The AO further noted the obligation ‘to ensure’ can be found in Article 194(2) UNCLOS.Footnote 79 Hence, the findings have been considered as embracing the precautionary principle under the UNCLOS implicitly.Footnote 80
In 2015, the ITLOS held in the SRFC AO that flag States have a ‘responsibility to ensure’ that ships flying their flag comply with coastal State regulations and do not engage in illegal, unreported and unregulated fishing.Footnote 81 The Tribunal stressed this responsibility, reaffirming such obligation’s character as being of conduct as well as due diligence.Footnote 82 Pursuant to Article 192 and 193 UNCLOS, this encompasses measures necessary to ensure, hence, a duty to ‘do the utmost’.Footnote 83 This finding seems doubtful in the absence of ‘to ensure’ or similar language.Footnote 84
According to Annex VII of the Tribunal in the South China Sea Arbitration (SCS Tribunal), Article 192 UNCLOS imposes a due diligence obligation on States to protect the marine environment.Footnote 85 Beyond prevention of direct harvesting of threatened species, the obligation further indirectly prevents harm to habitat ‘that would affect depleted, threatened, or endangered species’, this is ‘given particular shape in the context of fragile ecosystems by Article 194(5)’.Footnote 86
10.3.2.3 Beyond Today’s Jurisprudence
Beyond the jurisprudence, it has been argued that the wording of Article 1(1)(4) UNCLOS, read in conjunction with the obligation under Articles 192, 206 UNCLOS, may be seen as implying application of the precautionary principle.Footnote 87 The definition of ‘pollution of the marine environment’ in Article 1(1)(4) UNCLOS stipulates that pollution is the introduction of substances or energy by humans, ‘which results or is likely to result’ in inter alia harm to living resources. Thus, such wording may be considered to be an ‘embryonic’ use of the precautionary principle.Footnote 88
Further, it has also been argued that Article 196 UNCLOS ‘clearly reflects the precautionary principle’.Footnote 89 This was particularly based on a ‘fairly far-reaching’ interpretation of the term ‘which may cause significant and harmful changes’.Footnote 90 The word ‘may’ can be seen as incorporating an obligation to take measures ‘before preventive measures have to be taken’.Footnote 91
However, these arguments reflected in literature seem difficult to accept. In the absence of an interpretation by a competent authority, their understandings of the meaning of the Convention are marginalized.
10.3.2.4 Conclusion
Summa summarum, the relationship between the precautionary principle, obligations of conduct/due diligence and obligations under the UNCLOS might be a plausible reason for future tribunals to interpret Article 192 UNCLOS so that it requires application of the precautionary principle.Footnote 92 Overall, should this be the case, the Convention will have come a long way.
10.4 Final Remarks
This section returns to the original question of whether the UNCLOS requires application of the precautionary principle: recalling that the precautionary principle was only visible on the horizon during the negotiations.Footnote 93 It therefore appears the Convention originally did not require application. However, it seems that the principle now informs the normative content of the UNCLOS, and, thus, some may argue that the Convention does require its application after all.Footnote 94 If so, following the latter view, then such requirement may be considered indirect through the obligation to protect and preserve the marine environment (see Section 10.3.2). As Part XII covers all maritime zones,Footnote 95 a good argument may be made that direct approaches must be interpreted considering the obligations set out in Part XII.Footnote 96 Therefore, it may well be argued that the UNCLOS requires application of the precautionary principle.
However, one must keep in mind, that (too much) ‘coercion kills all noble, voluntary devotion’.Footnote 97 Many States have subjected themselves to the UNCLOS and the so called package deal.Footnote 98 This package is limited to an extensive but general framework.Footnote 99 Excessive pulling on the cords that hold the package together can lead to unforeseeable consequences.