Introduction
The 2019 United Nations General Assembly’s (UNGA) resolution on the oceans and the law of the sea expresses serious concern at the current and projected adverse effects of climate change and ocean acidification on the marine environment and marine biodiversity, emphasizing the urgency of addressing these issues. It further identifies overfishing and pollution as other pressures and adds that sea-level rise and coastal erosion are serious threats for many coastal regions and islands, particularly in developing countries. It reiterates its deep concern at the serious adverse impacts of certain human activities on the marine environment and biodiversity, particularly vulnerable marine ecosystems and their physical and biogenic structure. It observes that climate change continues to increase the vulnerability of coral reefs and mangroves and weakens the ability of reefs to withstand ocean acidification. It further notes with concern that the World Meteorological Organization, in its statement on the state of the global climate in 2018, highlighted that the world also continued to see increasing ocean temperatures, rising sea levels, and concentrations of greenhouse gases, while global sea ice shrinking continues to contract the cryosphere.Footnote 1 In light of these concerns, the UNGA calls upon states and international organizations to urgently take further action to address destructive practices that have adverse impacts on marine biodiversity and ecosystems.Footnote 2
Furthermore, the resolution recognizes the importance of the mandate of the International Seabed Authority (ISA) in ensuring the effective protection of the marine environment from harmful effects that may arise from mining activities in the “Area,”Footnote 3 while welcoming the development of the draft exploitation regulations on deep-seabed mining.Footnote 4 In this regard, it should be noted that exploitation of minerals in the Area raises concerns for the likely impacts upon the marine environment, habitats, and biodiversity. Moreover, the increase in underwater noise, the use of underwater lights, and induced changes in temperature from deep-sea mining operations are likely to further impact flora and fauna.Footnote 5 It has also been emphasized that biological and mineral resources are intrinsically linked in deep-sea ecosystems.Footnote 6 The need to protect and to preserve the marine environment and the importance of the United Nations Convention on the Law of the Sea (UNCLOS) to achieving sustainable development cannot be stressed too emphatically.
UNCLOS in its Part XII establishes important provisions aimed at protecting and preserving the marine environment, which is one of its primary objectives.Footnote 7 The convention plays a significant role in ensuring that states have recourse to a compulsory and binding dispute settlement mechanism, hence emphasizing the importance that the International Tribunal for the Law of the Sea (ITLOS or tribunal) could have in the settlement of disputes relating to the protection and preservation of the marine environment.Footnote 8 On many occasions, ITLOS has reaffirmed and developed the basic principles relating to the protection of the marine environment, including the precautionary approach, duty to cooperate, duty to conduct environmental impact assessments (EIA), and duty of due diligence, thereby contributing to the development of international environmental law.Footnote 9
This article first considers the “environmental” provisions of UNCLOS. It then examines the jurisdiction of ITLOS and its “environmental” cases. It finally offers some observations on the prospects for the (potential) future work of the tribunal with respect to environmental challenges, with a focus on climate change, deep seabed mining, and the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.
Protection and Preservation of the Marine Environment and UNCLOS
Part XII of UNCLOS provides the international legal framework governing the protection and preservation of the marine environment. Article 192 places upon all states a general obligation to protect and preserve the marine environment. This obligation is balanced with the sovereign right of states to exploit their natural resources.Footnote 10 In particular, UNCLOS focuses on pollution of the marine environment. Among others, states are obliged to take all measures necessary to prevent, reduce, and control pollution of the marine environment from any source and to ensure that activities within their jurisdiction and control do not cause damage to other states or their environment.Footnote 11 States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another.Footnote 12 They should cooperate on a global and regional basis in the task of adopting rules and standards,Footnote 13 exchange relevant information and data acquired about pollution of the marine environment,Footnote 14 continue to monitor the risks or effects of pollution,Footnote 15 and assess the potential effects of planned activities on the marine environment.Footnote 16 On pollution from seabed activities subject to national jurisdiction,Footnote 17 from activities in the Area,Footnote 18 from dumping,Footnote 19 and from vessels,Footnote 20 UNCLOS requires internationally accepted rules, standards, and recommended practices and procedures to be applied as minimum standards in the formulation and enforcement of national laws, regulations, and measures. In the adoption of laws and regulations relating to pollution from land-based sourcesFootnote 21 and from or through the atmosphere,Footnote 22 internationally agreed rules, standards, and recommended practices and procedures are to be taken into account. States are responsible for the fulfillment of the international obligations concerning the protection and preservation of the marine environment.Footnote 23
Beyond Part XII, many other provisions of UNCLOS are dedicated to the protection of the marine environment. Article 1(4) provides a definition of “pollution of the marine environment” as follows:
[T]he introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.
In their territorial sea (Part II of UNCLOS), coastal states may interdict or prevent the passage of a foreign ship when it is engaging in any act of wilful and serious pollution contrary to UNCLOS. Footnote 24 They may adopt laws and regulations relating to innocent passage in respect of the preservation of the environment and the prevention, reduction, and control of pollution thereof.Footnote 25 While exercising the right of transit passage in straits used for international navigation (Part III), ships shall, inter alia, comply with generally accepted international regulations, procedures, and practices for the prevention, reduction, and control of pollution from ships.Footnote 26 In the exclusive economic zone (EEZ) (Part V), coastal states have jurisdiction with regard to the protection and preservation of the marine environment.Footnote 27 They are required, inter alia, to ensure that maintenance of the living resources in the EEZ is not endangered by over-exploitation,Footnote 28 to maintain or restore populations of harvested species at the maximum sustainable yield,Footnote 29 and to promote the objective of optimum utilization of the living resources concerned.Footnote 30
On the continental shelf (Part VI), coastal states may not impede the laying and maintenance of submarine cables, subject to their rights to take reasonable measures for the prevention, reduction, and control of pollution from pipelines.Footnote 31 On the high seas (Part VII), flag states are required to take necessary measures to ensure that the master, officers, and crew of vessels are fully conversant with and required to observe the applicable international regulations concerning the prevention, reduction, and control of marine pollution, among others.Footnote 32 States are under a duty to adopt with respect to their nationals measures for the conservation of the living resources of the high seasFootnote 33 and to cooperate with other states in the conservation and management of such resources, including through the establishment of regional fisheries management organizations.Footnote 34 In particular, they must take measures designed to maintain or restore fish populations at levels that can produce the maximum sustainable yield, taking into account associated or dependent species when agreeing on such measures for living resources.Footnote 35 States bordering enclosed or semi-enclosed seas (Part IX) should cooperate with each other, in particular, with respect to the management, conservation, exploration, and exploitation of the living resources of the sea and the protection and preservation of the marine environment.Footnote 36
In the Area (Part XI), coastal states are entitled, in a manner consistent with Part XII, to take measures to prevent, mitigate, or eliminate grave and imminent danger to their coastlines from pollution, threat of pollution, or other hazardous occurrences in connection with activities in the Area.Footnote 37 Furthermore, the ISA, which is responsible for organizing and controlling activities in the Area, particularly with a view to administering its resources,Footnote 38 is instructed to adopt appropriate rules, regulations, and procedures for the protection and conservation of the natural resources of the Area and the prevention of damage to the marine environment.Footnote 39 As for marine scientific research (Part XIII), coastal states may withhold their consent to the conduct of a marine scientific research project in their EEZ and on their continental shelf where the project might introduce harmful substances into the marine environment.Footnote 40 Finally, Article 293(1) of UNCLOS should be mentioned, under which ITLOS, if it has jurisdiction under Part XV, shall apply other rules of international law not incompatible with the provisions of UNCLOS.
Jurisdiction of ITLOS and Environmental Cases
Composed of twenty-one members, ITLOS is an international judicial body established under UNCLOS for both the settlement of disputes and the deliverance of advisory opinions concerning the interpretation and application of UNCLOS. Footnote 41
jurisdiction over any dispute concerning the interpretation or application of unclos and other agreements
ITLOS has competence to settle disputes concerning the interpretation or application of UNCLOS Footnote 42 — including any dispute related to the protection and preservation of the marine environment — and any other agreement conferring jurisdiction.Footnote 43 One example is the 1995 United Nations Fish Stocks Agreement (UNFSA).Footnote 44 Under Article 30(1)–(2), the provisions relating to the settlement of disputes set out in Part XV of UNCLOS apply mutatis mutandis to disputes concerning the interpretation or application of UNFSA as well as disputes concerning the interpretation or application of a sub-regional, regional, or global fisheries agreement relating to straddling fish stocks or highly migratory fish stocks to which the parties to the dispute are party, including any disputes concerning the conservation and management of such stocks. Ratione personae, for the purposes of the settlement of disputes, the application of Part XV of UNCLOS extends to all states parties to UNFSA, “whether or not they are also Parties to UNCLOS.”Footnote 45
prompt release of vessels and crews
A detaining state is obliged to promptly release a vessel arrested for an alleged fishery offence upon the posting of a reasonable bond or other security.Footnote 46 UNCLOS also provides for the release of the vessel upon the posting of a bond when the vessel has been detained for alleged violation of legislation for the protection and preservation of the marine environment.Footnote 47 A special procedure for the prompt release of vessels is accordingly established in Article 292 of UNCLOS. It states that, where the authorities of a state party have detained a vessel flying the flag of another state party and it is alleged that the detaining state has not complied with the provisions of UNCLOS for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to ITLOS if, within ten days from the time of detention, the parties have not agreed to submit it to another court or tribunal.Footnote 48 To date, ITLOS has had nine prompt release cases, but there have been no applications for prompt release of vessels and crews detained for alleged marine pollution offences.
provisional measures
ITLOS may prescribe provisional measures under Article 290 of UNCLOS. This may arise in two possible scenarios. First, the tribunal has a general power to prescribe such measures. If a dispute has been duly submitted to it and if it considers prima facie that it has jurisdiction under Part XV, it may prescribe any provisional measures that it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.Footnote 49 The “prevention of serious harm to the marine environment” constitutes one of the justifications for the prescription of such measures, hence recognizing the need to preserve the common interests of the community of states.Footnote 50 Second, ITLOS enjoys a special residual compulsory jurisdiction to prescribe such measures, pending the constitution of an Annex VII arbitral tribunal to which a dispute is being submitted and if, within two weeks from the date of a request for provisional measures, the parties do not agree to submit the request to another court or tribunal. ITLOS may prescribe such measures if it considers that, prima facie, the arbitral tribunal to be constituted would have jurisdiction and that the urgency of the situation so requires.Footnote 51
The procedure for the prescription of provisional measures has until now served as the basis for referral to ITLOS of several cases dealing with the protection and preservation of the marine environment. On many occasions, the tribunal has underlined the parties’ obligations resulting from the protection and preservation of the marine environment. In Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan), Australia and New Zealand requested the prescription of provisional measures intended to prevent Japan from undertaking unilateral experimental fishing of southern bluefin tuna, maintaining that “the scientific evidence available shows that the amount of southern Bluefin tuna taken under the experimental fishing programme could endanger the existence of the stock.”Footnote 52 ITLOS characterized the conservation of the living resources of the sea as an element of the protection and preservation of the marine environment.Footnote 53 It further called on the parties to act with “prudence and caution” to ensure that effective conservation measures are taken to prevent serious harm to the stock concerned.Footnote 54 The tribunal prescribed that the parties should make further efforts to reach agreement with other states and fishing entities engaged in fishing for southern bluefin tuna to ensure conservation and to promote the objective of optimum utilization of the stock.Footnote 55
In MOX Plant (Ireland v United Kingdom), Ireland initiated urgent proceedings for the purpose of restraining the United Kingdom from authorizing the operation of a mixed oxide fuel (MOX) plant (that is, a nuclear fuel manufacturing facility) since “once plutonium is introduced into the MOX plant and it commences operations some discharges into the marine environment will occur with irreversible consequences.”Footnote 56 ITLOS laid emphasis on the duty to cooperate, stating that “the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of UNCLOS and general international law.”Footnote 57 It also considered that “prudence and caution” require that Ireland and the United Kingdom cooperate in exchanging information concerning risks or effects of the operation of the MOX plant and in devising ways to deal with them, as appropriate.Footnote 58 The tribunal ordered the parties to cooperate to exchange information on the consequences of the operation of the plant and monitor the risks resulting from it.Footnote 59
In Land Reclamation in and around the Straits of Johor (Malaysia v Singapore), Malaysia initiated urgent proceedings with a view to preserving its rights relating to the preservation of the marine and coastal environment as well as the right of maritime access to its coastline.Footnote 60 ITLOS considered that “it cannot be excluded that, in the particular circumstances of this case, the land reclamation works may have adverse effects on the marine environment”Footnote 61 and, thus, “prudence and caution require that Malaysia and Singapore establish mechanisms for exchanging information and assessing the risks or effects of land reclamation works and devising ways to deal with them in the areas concerned.”Footnote 62 Among other things, the tribunal unanimously ordered both parties to cooperate to establish promptly a group of independent experts with a precise mandate and exchange information on, and assess risks or effects of, Singapore’s land reclamation works.Footnote 63
In Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Côte d’Ivoire requested provisional measures aimed at suspending all ongoing oil exploration and exploitation operations in the disputed area to prevent serious harm to the marine environment.Footnote 64 With regard to its request for such measures to prevent serious harm to the marine environment, the Special Chamber found that Côte d’Ivoire “ha[d] not adduced sufficient evidence to support its allegations that the activities conducted by Ghana in the disputed area are such as to create an imminent risk of serious harm to the marine environment.”Footnote 65 However, it noted that “the risk of serious harm to the marine environment is of great concern to [it]”Footnote 66 and that the parties should in the circumstances “act with prudence and caution to prevent serious harm to the marine environment.”Footnote 67 It ordered, inter alia, that Ghana carry out strict monitoring of all activities undertaken in the disputed area to ensure the prevention of serious harm to the marine environment and that the parties cooperate to take all necessary steps to prevent serious harm to the marine environment in the disputed area.Footnote 68
advisory opinions
Pursuant to Article 138 of the Rules of the Tribunal, ITLOS has jurisdiction to give an advisory opinion on a legal question when certain conditions are met, as further detailed below.Footnote 69 In 2013, a request was made by the Sub-Regional Fisheries Commission (SRFC), a West-African fishery organization, on the obligations of states with respect to illegal, unreported, and unregulated (IUU) fishing. On 2 April 2015, ITLOS rendered an advisory opinion (Case no. 21) in which it clarified the said obligations. In doing so, it contributed to the interpretation of UNCLOS, particularly Article 192.Footnote 70 The tribunal stated that this article applies to all maritime areas.Footnote 71 Clarifying the “due diligence” obligation of the flag state, it said that the latter is obliged, in light of Articles 58(3), 62(4), and 192 of UNCLOS, to take the necessary measures to ensure that vessels flying its flag are not engaged in IUU fishing activities within the EEZs of the SRFC’s member states.Footnote 72 It further held that the flag state, in fulfillment of its obligation to effectively exercise jurisdiction and control in administrative matters under Article 94 of UNCLOS, must adopt the necessary administrative measures to ensure that fishing vessels flying its flag are not involved in activities in the SRFC’s member states’ EEZs that undermine the flag state’s responsibility under Article 192 of UNCLOS. It observed in this regard that conserving marine living resources is an integral element of protecting and preserving the marine environment.Footnote 73 It added that, pursuant to its general obligation to protect and preserve the marine environment, the flag state has the obligation to take the necessary measures to ensure that vessels flying its flag comply with the protection and preservation measures adopted by the SRFC’s member states.Footnote 74 Moreover, it noted that, in exercising their rights and performing their duties under UNCLOS in their respective EEZs, the SRFC’s member states and other states parties to UNCLOS must have due regard for the rights and duties of one another as they flow, inter alia, from their obligation to protect and preserve the marine environment.Footnote 75
the seabed disputes chamber (sdc)
The SDC is a permanent chamber formed within ITLOS to deal with disputes arising from activities in the Area.Footnote 76 It has described itself as “a separate judicial body within the Tribunal entrusted, through its advisory and contentious jurisdiction, with the exclusive function of interpreting Part XI of UNCLOS and the relevant annexes and regulations that are the legal basis for the organization and management of activities in the Area.”Footnote 77 The SDC is composed of eleven members selected by a majority of the elected members of ITLOS from among themselves.Footnote 78 It has contentious jurisdiction to settle different categories of disputes referred to in Article 187 of UNCLOS with respect to activities in the Area,Footnote 79 which will be further elaborated below. Provisional measures may also be prescribed by the SDC.Footnote 80 No dispute has been brought to it under its contentious jurisdiction so far.
The SDC may deliver an advisory opinion under Article 191 of UNCLOS. Footnote 81 A request for an advisory opinion on the question of the responsibility and liability of states that sponsor entities undertaking mining activities in the Area was made by the ISA Council in 2010, on the basis of a proposal made by the Republic of Nauru.Footnote 82 On 1 February 2011, the SDC unanimously issued its first advisory opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Case no. 17). From the point of view of international environmental law, the SDC’s ruling is regarded as “historic.”Footnote 83 In this advisory opinion, the SDC explained that sponsoring states have two kinds of obligations under UNCLOS and related instruments. The first is an obligation of due diligenceFootnote 84 — that is, an obligation “to exercise best possible efforts” to secure compliance by the sponsored contractors with the terms of the contract and the obligations set out in UNCLOS and related instruments.Footnote 85 This due diligence obligation requires the sponsoring state to make laws and regulations and take administrative measures within its legal system.Footnote 86 While the SDC observed in this regard that UNCLOS leaves it to the sponsoring state to determine what measures will enable it to discharge its responsibilities,Footnote 87 it nevertheless provided indications as to the required contents of those national measures.Footnote 88 For instance, in regard to the protection of the marine environment, it held that the laws and regulations and administrative measures of the sponsoring state cannot be less stringent than those adopted by the ISA or less effective than international rules, regulations, and procedures.Footnote 89
The second form of obligation is “direct” — that is, an obligation with which sponsoring states must comply “independently of their obligation to ensure a certain conduct on the part of the sponsored contractors.”Footnote 90 The SDC listed the most important among these as including the obligations to assist the ISA in the exercise of control over activities in the Area, to apply a precautionary approach, to apply best environmental practices, to take measures to ensure the provision of guarantees in the event of an emergency order by the ISA for protection of the marine environment, to ensure the availability of recourse for compensation in respect of damage caused by pollution, and to conduct EIAs.Footnote 91 In particular, the SDC noted that the due diligence obligation of the sponsoring state to ensure compliance by the sponsored contractor with its obligation to conduct an EIA is a direct obligation under UNCLOS and a general obligation under customary international law.Footnote 92 It also identified the precautionary approach as one of the direct “due diligence” obligations of the sponsoring state.Footnote 93 It observed that its incorporation into a growing number of international treaties and other instruments, many of which reflected the formulation of Principle 15 of the Rio Declaration, has initiated a trend towards making this approach part of customary international law.Footnote 94 While both the “due diligence” obligation and direct obligations apply equally to all sponsoring states, whether developing or developed,Footnote 95 the requirements for complying with the obligation to apply the precautionary approach may be stricter for developed than for developing sponsoring states.Footnote 96
With respect to the standard of liability, the SDC pointed out that, if the sponsoring state has not failed to meet its obligation of due diligence, there is no room for its liability under Article 139(2) of UNCLOS even if the activities of the sponsored contractor have resulted in damage.Footnote 97 It observed that, in the event of damage to the Area and its resources and damage to the marine environment, the ISA, entities engaged in deep seabed mining, other users of the sea, and coastal states may be entitled to claim compensation.Footnote 98 Finally, it drew the attention of the ISA to the option of establishing a trust fund to cover such damages that are not otherwise covered.Footnote 99
Prospects for the Role of ITLOS in the Environmental Challenges Ahead
The following discussion will consider the role that ITLOS could potentially play in relation to some topical environmental challenges — in particular, climate change, mineral exploration activities in the Area, and the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.
climate change
UNCLOS is not the primary regime for climate change mitigation,Footnote 100 but it remains nonetheless relevant to climate change in that greenhouse gas emissions cause marine pollution and harm to the marine environment and induce a rise in sea levels. In any event, particular attention has been focused on the potential roles of the International Court of Justice (ICJ) and ITLOS with respect to climate change.Footnote 101 In the discussion of a suitable forum for addressing climate change issues, ITLOS has been described as having “among its main potentials [that] of becoming a forum for future climate change litigation,”Footnote 102 further considering that a request based on the precedent of Case no. 21 is the “most likely and promising short-term scenario.”Footnote 103 The following sections consider this scenario.
Jurisdiction
Under Article 138 of the Rules of the Tribunal, ITLOS may give an advisory opinion on a legal question if an international agreement related to the purposes of UNCLOS specifically provides for the submission to the tribunal of a request for such an opinion. The request must be transmitted to ITLOS by a body authorized by, or in accordance with, the said agreement. It has to be noted that the advisory jurisdiction of the tribunal in Case no. 21 was contested by some states,Footnote 104 mainly because UNCLOS, including its Annex VI, did not expressly provide for such jurisdiction. Yet, in the same case, ITLOS unanimously confirmed its advisory jurisdiction as a full tribunal, which certainly constitutes an established jurisdiction.
Unlike the ICJ, where the request for an advisory opinion has to come from an organ or agency having the competence to make it,Footnote 105 there are no designated entities entitled to request such opinions from ITLOS.Footnote 106 This notwithstanding, an international agreement concluded by an international organization could provide for recourse to ITLOS’s advisory procedures,Footnote 107 as done by the SRFC in Case no. 21.Footnote 108 It has also been argued that the procedure is open to states.Footnote 109 Taken this way, an international organization (or, presumably, some states suffering the consequences of climate change and sea-level rise) might enter into an agreement that specifically entitles a body to request an advisory opinion of ITLOS. Alternatively, it has been suggested that UNCLOS’s Meeting of States Parties (SPLOS) could conclude an agreement specifically conferring advisory competence upon ITLOS in the form of a decision adopted at a meeting.Footnote 110 Arguably, such a request for an advisory opinion requires “general agreement”Footnote 111 and, failing this, a “two-thirds majority of the States parties present and voting, provided that such majority includes a majority of the States parties participating in the Meeting.”Footnote 112
While the nature of the requesting body does not matter, a “sufficient connection” between the functions of this body and the question asked is required.Footnote 113 In other words, the question posed in the request has to come “within the scope of the activities” of this body.Footnote 114 ITLOS cited ICJ jurisprudence and, in particular, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, in introducing the “sufficient connection” requirement.Footnote 115 In that case, the ICJ declined to render an opinion because, after examining the functions of the World Health Organization (WHO) in light of its Constitution and subsequent practice, the ICJ concluded that the WHO was not authorized to deal with matters of legality, but only with the health effects, of the use of nuclear weapons. Accordingly, the ICJ held that the question asked by the WHO did not arise within the scope of its activities, as defined in its Constitution.Footnote 116 In this regard, it would seem difficult to hold the view that SPLOS’s mandate, which is restricted to administrative, financial, and procedural issues as set out in its Rules of Procedure,Footnote 117 includes the possibility of seeking an advisory opinion from the tribunal.
Legal Question
A request for an advisory opinion must be based on a “legal question.”Footnote 118 ITLOS has observed that questions “framed in terms of law and raising problems of international law … are by their very nature susceptible of a reply based on law.”Footnote 119 As far as climate change is concerned, requesting an advisory opinion from ITLOS would be desirable in order to clarify, for instance, the legal environmental obligations of states under Part XII of UNCLOS in the context of climate change, and the legal consequences of sea-level rise for baselines, the outer limits of maritime zones, and coastal states’ entitlements to maritime areas. These kinds of questions concern the interpretation of provisions of UNCLOS and raise issues of general international law.Footnote 120 The framing of the questions would be a crucial issue. Referring to the ICJ’s case law, one can observe that, where questions have been unclear or vague, the ICJ has interpreted the scope and meaning of the question,Footnote 121 and a great deal has depended on how it has proceeded to do so. It is interesting to note in this context that the ISA Council reformulated the questions initially posed by Nauru in Case no. 17.Footnote 122
Discretion
In the event that ITLOS has jurisdiction, it would then have to decide whether it should exercise its discretion to decline a request for an advisory opinion. In Case no. 21, the tribunal decided by nineteen votes to one to exercise its jurisdiction. Yet, it emphasized that having jurisdiction does not mean that it is obliged to exercise it.Footnote 123 It also made clear that, while responding to a legal question, it cannot take a position on issues beyond the scope of its judicial functions or exercise a legislative role.Footnote 124 Referring to the ICJ’s case law, it held that only “compelling reasons” should lead it to decline a request.Footnote 125 If the ICJ jurisprudence is to be followed by ITLOS in this respect, maintaining “the integrity of the Court’s judicial function as the principal judicial organ of the United Nations” has so far been the reason for refusal given by the ICJ.Footnote 126 In particular, the ICJ has considered that it cannot regard the following factors, among others, as “compelling reasons” to decline to exercise its jurisdiction: the fact that the questions asked raise complex and disputed factual issues that are not suitable for determination in advisory proceedings;Footnote 127 the motives behind the request;Footnote 128 the lack of any useful purpose;Footnote 129 or the prospect that an advisory opinion could impede a political, negotiated solution to a particular conflict.Footnote 130 Nonetheless, the question of discretion and propriety is arguably “very much harder.”Footnote 131 This is particularly true when considering how close the ICJ came, in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, to actually declining to exercise its advisory jurisdiction for the first time.Footnote 132 The formulation of the question would be especially important to avoid this kind of problem. In any event, the ICJ has until now exercised its discretion to accede to all requests for an advisory opinion that came within its jurisdiction.Footnote 133
On another note, several states had called upon ITLOS to exercise its discretionary authority to refuse to accede to the SRFC’s request in Case no. 21 as it would otherwise be pronouncing on the rights and obligations assumed by third states that were not members of the SRFC without their consent.Footnote 134 However, the tribunal explained that in advisory proceedings the consent of non-requesting states is not relevant, adding that the opinion has no binding force.Footnote 135 It is of note here that, while both the SDC and ITLOS sensibly followed the jurisprudence of the ICJ in Cases no. 17 and 21, respectively, ITLOS did not rely on the ICJ’s finding that,
[i]n certain circumstances … the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court’s judicial character. An instance of this would be when the circumstances disclose that to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent.Footnote 136
The lack of consent — regarded as a matter of discretion rather than jurisdiction — has been raised in numerous ICJ advisory opinions.Footnote 137 In any event, as stated above, there must be compelling reasons to decline a request, and, as a matter of principle, ITLOS will not refuse to accede to a request for an advisory opinion that is considered “desirable ‘in order to obtain enlightenment as to the course of action [to be taken].’”Footnote 138 The scope of the compelling reasons sufficient to justify refusal remains, however, to be clarified.
Non-Binding Character
Advisory opinions are not legally binding,Footnote 139 but they offer authoritative guidance on the interpretation of a legal instrument. The purpose of an opinion is to assist the requesting organization in the performance of its activities and contribute to the implementation of UNCLOS. Footnote 140 As for the follow-up to a potential advisory opinion on climate change, some scholars have queried the likely “ineffectiveness” of such an opinion due to its non-binding character and have even questioned the legitimacy and/or legal effect of such an opinion requested by some states but having an impact upon others.Footnote 141 At the outset, one has to point out the restraint that states show in requesting advisory opinions.Footnote 142 This alone bears witness to the fact that requesting such an opinion is “no light matter.”Footnote 143 In any event, it is worth considering how states and international organizations have put the two existing ITLOS advisory opinions into practice in order to shed some light on this issue.
With respect to Case no. 17, as stated by Michael Lodge, it is beyond doubt that it “solved a very real problem and has been of great value and assistance to States Parties, as well as potential investors in deep seabed mining.”Footnote 144 First, the advisory opinion has paved the way for the submission of many applications for exploration by both developed and developing states, including Nauru. Since its deliverance, twenty-two plans of work for exploration have been approved by the ISA.Footnote 145 Second, as stated before, the SDC clarified the required content of national measures regulating activities in the Area. In this respect, the opinion has changed the behaviour of states partiesFootnote 146 in that, after its issuance, a dozen states have adopted or amended their national legislation to control activities by entities with whom they had entered into contracts for exploration.Footnote 147 Third, a preambular paragraph taking note of the advisory opinion has been included in every decision of the Council formally approving a plan of work for exploration.Footnote 148 Fourth, this opinion has an impact on the current negotiations of the ISA’s Mining Code. Many states have explicitly referred to it while commenting on drafts of the code.Footnote 149
As for Case no. 21, as Judge Tomas Heidar observed, the opinion “gives teeth to the relevant treaty provisions on flag State obligations and has already had an impact on State legislation and practice.”Footnote 150 First, it has undoubtedly provided great assistance to the West African coastal states concerned (that is, Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal, and Sierra Leone), having an impact upon their subsequent actions. States concerned have strengthened the national and sub-regional legal framework for fisheries.Footnote 151 They also have taken actions to improve fisheries governance, such as the organization of several training workshops to raise awareness of the advisory opinion as well as to validate national and sub-regional action plans for implementation of the opinion; actions to strengthen both the capacities of the SRFC’s members and the framework for monitoring and control; and surveillance of fisheries and the launching of the sub-regional fisheries monitoring operation “TESSITO” supported by the European Union (EU).Footnote 152
Second, setting apart the SRFC’s members, the advisory opinion has also spurred changes in other parts of the world. For instance, it played a role in the EU’s legislative process in assuring additional control by public authorities over fishing activities.Footnote 153 In 2015, the EU Commission made a proposal for an internal EU regulation concerning the management of external fishing fleets with a view to acquiring more effective control mechanisms for fishing activities under private licenses.Footnote 154 It is telling in this regard that the explanatory memorandum of the proposal for a regulation of the European Parliament and of the Council on the Sustainable Management of External Fishing Fleets explicitly cited Case no. 21 as one of the reasons for, and the objectives of, the proposal:
[I]n April 2015, [ITLOS] delivered its advisory opinion on [IUU] matters within the [EEZ] of the members of the Sub-Regional Fisheries Commission. ITLOS considers that a flag State’s responsibility to prevent and/or repress IUU fishing activities within the EEZs of coastal states to be an obligation of “due diligence”. ITLOS stresses the liability of the Union, and not its Member States, for any breach of the fisheries access agreements it has with coastal states.Footnote 155
This led to the adoption of Council Regulation (EU) 2017/2403 on the Sustainable Management of External Fishing Fleets, and repealing Council Regulation (EC) No 1006/2008. Footnote 156 On another note, reference could also be made to the potential impact on the policy of the Pacific Islands Forum Fisheries Agency.Footnote 157
Third, one could point to the negotiations on fisheries subsidies currently underway within the World Trade Organization (WTO).Footnote 158 Since certain forms of fisheries subsidies could be contributing to overfishing and the overcapacity of fleets around the world as well as enabling IUU fishing, the WTO’s negotiations are driven by the goal of meeting the United Nations’ (UN) Sustainable Development Goal no. 14.6 target of abolishing subsidies contributions to IUU fishing by 2020.Footnote 159 Against this backdrop, Case no. 21 constitutes one of the bases on which some states are explaining their proposals in order to assist WTO members in ultimately reaching an agreement.Footnote 160
Gathering from the above, an advisory opinion relating to climate change could prove not only to be a valuable tool for the clarification of a legal situation but also a constructive tool potentially complementing the UN’s climate negotiations by setting the terms of the debate, influencing domestic litigation, and/or helping to change social norms and values.Footnote 161
deep seabed mineral mining
Currently in the exploratory phase, it is foreseen that the deep seabed exploitation phase will begin soon. The ISA is currently developing a Mining Code, which refers to the whole of the comprehensive rules, regulations, and procedures issued by the ISA to regulate prospecting, exploration, and exploitation of marine minerals in the Area.Footnote 162 While taking into account stakeholders’ interests, the Mining Code will play a critical role in minimizing the damage to the marine environment during the seabed mining process.Footnote 163 In July 2016, the first working draft of the Mining Code was issued by the ISA’s Legal and Technical Commission. To date, three draft texts of regulations on exploitation of mineral resources in the Area have been issued. The following section considers the dispute settlement aspects of the ISA’s Mining Code.
Settlement of Disputes in the Mining Code: SDC
Draft Regulation 106 of Part XII of the Revised Draft Regulations on Exploitation of Mineral Resources in the Area, entitled “Settlement of disputes,” reads as follows:
1. Disputes concerning the interpretation or application of these regulations and an exploitation contract shall be settled in accordance with section 5 of Part XI of the Convention [Settlement of Disputes and Advisory Opinions].
2. In accordance with article 21 (2) of annex III to the Convention, any final decision rendered by a court or tribunal having jurisdiction under the Convention relating to the rights and obligations of the Authority and of the Contractor shall be enforceable in the territory of any State party to the Convention affected thereby.Footnote 164
Along with its advisory jurisdiction, Section 5 of Part XI of UNCLOS confers a compulsory and quasi-exclusive jurisdiction upon the SDC over disputes arising from activities in the Area.Footnote 165 The categories of disputes include:
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• disputes between states parties concerning the interpretation or application of Part XI of UNCLOS and its annexes relating thereto;Footnote 166
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• disputes between a state party and the ISA concerning their respective acts or omissions that are allegedly in violation of Part XI of UNCLOS or its annexes relating thereto or of rules, regulations, and procedures of the ISA;Footnote 167
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• disputes between a state party and the ISA concerning acts of the ISA alleged to be in excess of jurisdiction or a misuse of power;Footnote 168
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• disputes between parties to a contract concerning the interpretation or application of a relevant contract or a plan of work;Footnote 169
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• disputes between parties to a contract concerning acts or omissions of a party to the contract relating to activities in the Area and directed to the other party or directly affecting its legitimate interests;Footnote 170
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• disputes between the ISA and a prospective contractor concerning the refusal of a contract or a legal issue arising in the negotiation of the contract;Footnote 171
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• disputes between the ISA and a state party, a state enterprise, or a natural or juridical person sponsored by a state party where it is alleged that the ISA has incurred liability as provided in Annex III, art 22;Footnote 172 and
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• other disputes for which the jurisdiction of the SDC is specifically provided in UNCLOS. Footnote 173
There seem to be potential loopholes in the SDC’s jurisdiction as some disputes arising from deep seabed activities would fall outside its jurisdiction. Categories of disputes concerned are those that fall outside the jurisdiction of the SDC based on the language of Article 187 as well as those where one or more of the parties is or are outside its jurisdiction.Footnote 174 In this respect, it has been suggested that the jurisdiction of the SDC be enlarged to deal with the disputes concerned.Footnote 175 This proposal is not reflected in the various drafts to date.
Administrative Review Mechanism
ISA Discussion Paper no. 1, titled “Dispute Resolution Considerations Arising under the Proposed New Exploitation Regulations,” suggests that the ISA “should give consideration as to whether the [SDC] is best suited for all disputes that are foreseeable, or whether there are some disputes that might be decided by other tribunals or decision makers.”Footnote 176 First, it proposes the referral of “technical disputes” to an “appropriately qualified expert or expert panel for determination,” as “it may not be efficient to have such disputes determined by a predominantly legally-trained and focused tribunal such as the [SDC]” and the proposed expert panel “is likely to be faster and cheaper than formal proceedings before the [SDC].”Footnote 177 It further recommends subjecting the proposed expert panel to the supervisory jurisdiction of the SDC.Footnote 178 Second, it notes that there may be circumstances in which, “in the interests of speed and cost and in the interests of ensuring that the [SDC] is not clogged with potentially expensive disputes concerning the ISA’s administrative decisions,” internal administrative appeals would be preferable before proceeding to dispute settlement under Part XI, section 5 of UNCLOS — in particular, for disputes between the ISA and a prospective contractor.Footnote 179
The first drafts of Regulations 57 and 92, respectively, propose the establishment of an administrative review mechanism. In more detail, Draft Regulation 92 makes provisions for such a mechanism applicable in the event of any dispute concerning the interpretation or application of the exploitation contract, where the contractor seeks a review of any decision made or action taken by or on behalf of the ISA against the contractor.Footnote 180 Such a request might be the subject of an investigation by the secretary-general.Footnote 181 Once this investigation is concluded, if the secretary-general and the contractor fail to agree upon a single expert to determine the dispute, the dispute will be referred to a panel of experts constituted as follows:Footnote 182 the contractor and the secretary-general would seek to agree upon the composition of the panel within thirty days of the conclusion of the said investigation; if no agreement is reached, the contractor and the secretary-general would each nominate one member of the panel within a further thirty days; the two members so nominated would agree upon the third member of the panel, who would act as chairman; if the two members are unable to agree within thirty days of the second of them being appointed, the president of the SDC would nominate the third member of the panel.Footnote 183 A single expert, or a panel of experts, would seek to act in “the most expeditious and cost-effective manner.”Footnote 184
Some have expressed support for this “more cost-effective” route to the resolution of technical disputes, while pointing out that the drafting leaves a lot of questions unanswered, such as the question of appropriate technical expertise represented on such a panel, the question whether parties other than a contractor and the ISA would be able to use the review mechanism, the legal effect of the panel’s decision, the question of whether there should be an appeal route to the SDC, and the interaction/consistency of such a mechanism with Part XI, section 5.Footnote 185 At the same time, others have commented that the proposed mechanism should not be set up as an alternative to the SDC and have emphasized the importance of preserving the integrity of UNCLOS and the jurisdiction of the SDC thereunder.Footnote 186 Ultimately, the proposed approach has not received broad support. The administrative review mechanism provided for in earlier drafts has been deleted in the last version of the revised draft regulations.
Apart from the administrative review mechanism, it is to be noted that some states have proposed alternative dispute settlement procedures. For instance, China has said that, if a dispute could not first be resolved through negotiation and consultation, the dispute settlement mechanism set out in the regulations might allow for disputes to be referred to a third-party dispute settlement procedure, with the express consent of the parties concerned.Footnote 187 The Federated States of Micronesia, for their part, have suggested that the ISA create a standing body of technical, legal, and scientific experts that the SDC could call on for an initial screening of a potential dispute to determine whether it is of a purely technical nature that does not require adjudication by the SDC or some other legal tribunal.Footnote 188 Another suggestion has been for the ISA to “explore the possibility of ITLOS establishing special rules of procedure that would accommodate expedited hearings on a subset of disputes that may arise under the exploitation regulations similar to those applicable to the prompt release of vessels and crews.”Footnote 189
The foregoing prompts some observations. First, the SDC may form an ad hoc chamber, composed of three of its members, to deal with a particular dispute submitted to it in accordance with Article 188(1)(b) of UNCLOS. Its composition is to be determined by the SDC with the approval of the parties.Footnote 190 Second, Article 49 of the Rules of the Tribunal expressly specifies that proceedings are conducted “without unnecessary delay or expense.” Furthermore, numerous provisions dedicated to the SDC in the Rules of the Tribunal provide for the discharge of its functions speedily, efficiently, and cost-effectively.Footnote 191 Third, Article 289 of UNCLOS provides for the appointment of experts by the SDC in any dispute involving scientific or technical matters, at the request of a party or proprio motu.
In the discussion regarding the establishment of an administrative review mechanism, much has turned on the cost-effectiveness and formality of the procedure of the SDC or, in other words, the fact that seizing the SDC could be seen as using a “sledgehammer to crack a walnut.”Footnote 192 Yet, alternatively, one can argue that such a mechanism would have real potential when it comes to limitations on the SDC’s jurisdiction with regard to decisions of the ISA. Under Article 189 of UNCLOS, the SDC has no jurisdiction with regard to the exercise by the ISA of its discretionary powers in accordance with Part XI of UNCLOS. In particular, in no case shall the SDC substitute its discretion for that of the ISA. Without prejudice to its advisory jurisdiction under Article 191 of UNCLOS, the SDC shall not pronounce itself on the question of whether any rules, regulations, and procedures of the ISA are in conformity with UNCLOS, nor declare invalid any such rules, regulations, and procedures. Its jurisdiction in this regard is confined to deciding claims that the application of any rules, regulations, and procedures of the ISA in individual cases are in conflict with the contractual obligations of the parties to the dispute or their obligations under UNCLOS; claims concerning excess of jurisdiction or misuse of power; and claims for damages to be paid or other remedies to be given to the party concerned for the failure of the other party to comply with its contractual obligations or its obligations under UNCLOS. These limitations on the SDC’s jurisdiction are quite significant, but they afford the ISA the freedom, powers, and discretion it needs to discharge its responsibilities.Footnote 193 In such a setting, the establishment of an administrative review mechanism with respect to the ISA’s exercise of its discretionary powers deserves further consideration.Footnote 194
Needless to say, however, such a mechanism, if any, would incur costs, which would arguably be borne equally by the ISA and the party.Footnote 195 Besides, the limitations contained in Article 189 of UNCLOS do not apply to the advisory proceedings of the SDC. Therefore, this advisory jurisdiction can have implications for the procedures adopted by the ISA with regard to the exercise of its discretionary powers.Footnote 196
marine BIOLOGICAL DIVERSITY IN AREAS BEYOND NATIONAL JURISDICTION
In 2015, the UNGA decided to develop an internationally legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ).Footnote 197 Three substantive sessions of the ensuing intergovernmental conference have been held, and two draft texts have been issued by the president of the conference.Footnote 198 The following discussion succinctly considers the question of the dispute settlement mechanism under a potential BBNJ agreement. These comments are succinct as the issue has already been well documented elsewhere,Footnote 199 and, more fundamentally, it is not entirely clear at this stage what kind of dispute resolution mechanism might be included in such an instrument, not least because some general principles applicable to genetic resources beyond national jurisdiction remain contentious.Footnote 200
In relation to the settlement of disputes, several delegations have suggested that provisions set out in Part XV of UNCLOS apply mutatis mutandis to any dispute between states parties, drawing on the provisions of UNFSA. Others have favoured an obligation to settle disputes by peaceful means, as provided under both UNCLOS and UNFSA. Others have refused to support any reference to UNCLOS. It has been proposed that parties could consider submitting disputes to a third-party procedure based on explicit mutual agreement. It has also been suggested that provision be made for the submission of disputes between states parties on the interpretation or application of the proposed BBNJ instrument to a special ITLOS chamber, whether or not they are also parties to UNCLOS. Still another proposal would provide the Conference of the Parties to the proposed BBNJ instrument with the power to request an advisory opinion from ITLOS.Footnote 201
A few words may be said about the foregoing proposals. First, the availability of different dispute resolution options to states with disputes arising under both UNCLOS and the proposed BBNJ agreement might create difficulties.Footnote 202 Second, as for the proposal of creating an ITLOS special chamber to deal with issues related to BBNJ, ITLOS has the power to create such a chamber specifically tailored to resolve such disputes. Article 15(1) of the ITLOS Statute allows it to “form such chambers, composed of three or more of its elected members, as it considers necessary for dealing with particular categories of disputes.”Footnote 203 Third, it has been highlighted above that the power to request an advisory opinion is a valuable tool, though it faces some hurdles, as noted previously, including issues surrounding the exercise by ITLOS of advisory jurisdiction. Finally, it should be noted that the latest version of the draft text tabled by the president of the BBNJ conference dedicated its Part IX to “Settlement of Disputes.” Draft Article 54 sets out the general obligation to settle disputes by peaceful means. Draft Article 55 invokes the mutatis mutandis formula to apply the provisions relating to the settlement of disputes set out in Part XV of UNCLOS “to any dispute between States Parties to this Agreement concerning the interpretation or application of this Agreement, whether or not they are also Parties to UNCLOS,” as modelled in Article 30 of UNFSA. Footnote 204
Conclusion
State obligations on the protection and preservation of the marine environment have undergone significant development in ITLOS’s jurisprudence through the prescription of provisional measures and the deliverance of advisory opinions. Furthermore, it has been shown that ITLOS constitutes an appropriate forum and is flexible enough to accommodate legal issues related to environmental challenges such as climate change, exploitation of the Area, or BBNJ. Furthermore, considering the above discussion, one has to recall that Part XV of UNCLOS was part of a delicately negotiated package deal. As President Hamilton Amerasinghe, the first president of the third UN Conference on the Law of the Sea explained, “[d]ispute settlement procedures will be the pivot upon which the delicate equilibrium of the compromise must be balanced, otherwise the compromise will disintegrate rapidly and permanently.”Footnote 205
