Anthony Aust. Handbook of International Law

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victims’ remains. On 2 November 2001, UNESCO adopted a Convention on the Protection of the

Underwater Cultural Heritage.

It requires twenty ratifications to enter into force, and so far three

states have ratified. It has been criticised by major maritime states, particularly over the exercise of

jurisdiction, and so was not adopted by consensus but by eighty-five to four with fifteen abstentions,

including the United Kingdom.

Protection of the marine environment

This topic, including pollution by wrecks, is covered at pp. 341-3 below.

Dispute settlement under the Convention

The International Tribunal for the Law of the Sea

Following the entry into force of the Convention in 1994, the International Tribunal for the Law of

the Sea (ITLOS, or ‘the Tribunal’) was established in 1996 at Hamburg, Germany. The provisions

on its composition and procedure are in Annex (also referred to as the Statute) to the Convention.

It has no less than twenty-one judges serving nine-year, re-electable terms. Disputes may be

submitted to the full Tribunal or to one of its chambers. The Tribunal has established two chambers

of seven for fisheries and marine environmental disputes, respectively; a seabed disputes chamber of

eleven; and a summary procedure chamber of five. The Tribunal may also form an ad hoc chamber

to deal with a particular dispute if the parties so request. The Tribunal generally follows the

procedure of the International Court of Justice, English and French being its official languages. As

with the ICJ, the fount of all knowledge on the procedure and practice of the Tribunal is the

Registrar, who should be consulted by any prospective litigant. In addition to Annex , the Tribunal

has adopted detailed procedural Rules, as well as Guidelines on the preparation and presentation of

cases.

The Tribunal is open to all states parties to the Convention and entities referred to in Article

305(1)(c) to (f) of the Convention. These include international organisations that have become

parties to the Convention in respect of matters on which competence has been transferred to them

61. ILM (2002) 37 or see www.unesco.org. See Garabello and Scovazzi (eds.), The Protection of the

Underwater Cultural Heritage (Leiden, 2003).

62. See the Tribunal’s excellent website, at www.itlos.org, for the Convention, basic documents and

judgments.

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by their member states, such as the European Community (see Annex ). It has jurisdiction over any

legal disputes concerning the interpretation or application of the Convention (Article 288(1) and

Annex , Article 21) and the Implementation Agreement 1994.

It also has jurisdiction over any

dispute under a treaty related to the purposes of the Convention submitted to it in accordance with

that treaty (Article 288(2)), and for this purpose the parties to the dispute do not have to be parties to

the Convention. For example, the Fish Stocks Agreement 1995 allows the parties to it to submit

their disputes under it to the Tribunal.

Means of dispute settlement

The provisions on the settlement of disputes in Articles 279–299 of the Convention and in Annexes

– are hideously complex. The basic rules are:

Any dispute between the parties about the Convention should be resolved by any peaceful

means of their choice.

A party to a dispute relating to the Convention may invoke any bilateral, regional or general

settlement mechanism to which the parties are already bound and which applies to the dispute,

the procedures of the Convention applying only if no settlement has been reached and the

mechanism does not exclude recourse to Convention procedures.

Parties may agree to conciliation under Annex .3.

If no settlement can be reached by any of these means, any party to the dispute may submit it to

a compulsory procedure entailing binding decisions. For this purpose, a party to the

Convention may at any time make a general declaration (which can be replaced or revoked)

that it chooses one or more of the following means of settlement:

the Tribunal;1.

the International Court of Justice;2.

an arbitral tribunal constituted under Annex ;3.

a special arbitral tribunal, constituted under Annex , for disputes about fisheries, the

marine environment, scientific research or navigation, including pollution.

63. See n. 31 above.

64. See Article 30, and n. 57 above.

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If the parties to the dispute have both accepted the same procedure, it must be used, unless they

agree otherwise; if the parties have not accepted the same procedure, the dispute may be

submitted only to arbitration under Annex , unless they agree otherwise.

A party to a dispute which is not covered by a declaration is deemed to have accepted

arbitration under Annex .

There are special provisions for disputes about activities in the Area to be decided by the Sea-

Bed Disputes Chamber (Articles 186–191), to which not only states parties to the Convention,

but also state enterprises, natural and legal persons, the International Sea-Bed Authority and

the Enterprise, have access (Article 153(2)(b)).

The Tribunal can order legally binding provisional measures of protection. When a dispute is

submitted to arbitration under Annex , any party to the dispute may request the Tribunal to

prescribe provisional measures pending the constitution of the arbitral tribunal pursuant to Article

290(5) of the Convention. Four cases have been submitted to the Tribunal under this provision.

There is also a special provision under which the Tribunal can order the prompt release of a vessel

(Article 292).

Seven such cases have so far been dealt with. The Tribunal can also give advisory

opinions (Convention, Articles 139(1), 159(10) and 191; Rules, Article 138).

In Resolution 55/7 of 2000, the UN General Assembly established a Trust Fund administered by

the Secretary-General to help parties to the Convention to settle disputes through the Tribunal. The

Fund is like that established for ICJ cases,

being financed by voluntary contributions from states.

Applications for assistance from the Fund are considered by a panel of independent experts who

make recommendations to the Secretary-General.

The Tribunal began work only in 1996. Despite being relatively unknown and with a jurisdiction

that competes with the ICJ and other established means of settlement, it has so far had fourteen

cases. All but four were concerned with fisheries, two being about provisional measures in

connection with maritime environmental disputes, the other two on

65. Only available when the detaining state has not complied with specific provisions of UNCLOS for

prompt release or upon the posting of a bond: see Articles 73, 220(7) and 226(1)(b) or (c).

66. See p. 449, n. 83 below.

67. Further information should be sought from the Office of the UN Legal Counsel or the Registrar of the

Tribunal.

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issues relating to the bunkering of vessels at sea, the nationality of ships, hot pursuit, the use of force

at sea and claims for reparation. The Tribunal has delivered seven judgments and made twenty-six

orders. Seventeen states parties have been involved.

Increasingly, Annex arbitrations (particularly maritime delimitation cases) are being held under

the auspices of the PCA.

68. See p. 444 below.

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16 International environmental law

Let it be borne in mind how infinitely complex and close-fitting are the mutual relations of all organic

beings to each other and to their physical conditions of life.

Birnie and Boyle, International Law and the Environment, 2nd edn, Oxford, 2002

Birnie and Boyle, Basic Documents on International Law and the Environment, Oxford, 1995 (‘B&B

Docs.’)

Churchill and Lowe, The Law of the Sea, 3rd edn, Manchester, 1999

Burke, The New International Law of Fisheries, Oxford, 1994

The poet Philip Larkin famously said that sexual intercourse began in 1963.

He could have said

something similar about the environment and the 1970s. Although it has always been with us, only

in that decade did the environment truly emerge as an important issue, and international

environmental law (IEL) as a specialised subject of international law. This chapter is headed

‘International environmental law’ since much of domestic environmental law is not enacted merely

to implement treaties, and indeed may be more advanced than IEL, which is almost entirely derived

from treaties. The subject matter can be controversial and an area where NGOs, have been especially

energetic.

But, because of the sometimes widely differing views of states on what should be done to

protect the environment, the degree to which NGOs influence policy-making at the international

level can be exaggerated.

Environmental protection and the conservation of natural resources necessarily compete with

commercial interests, and a commercial element

1. Charles Darwin, On the Origin of Species, London, 1859, Ch. , p. 80.

2. Philip Larkin, High Windows, 1974, ‘Annus Mirabilis’.

3. The (ECE) Aarhus Convention 1998, 2161 UNTS 450 (No. 37770); ILM (1998) 999, requires parties to

provide to individuals and NGOs rights of access to information, participation in decision-making and

access to justice in environmental matters. It entered into force in 2001 and has thirty-six parties, including

most large EC states.

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is almost invariably present in any environmental dispute. The dispute between Ireland and the

United Kingdom about the nuclear reprocessing plant at Sellafield in northwest England involves

Irish environmental fears and British concern to protect a valuable industrial asset.

Neither industry

nor commerce is ipso facto a threat to the environment. Since we live in an industrialised world,

multilateral environmental treaties represent a compromise between the interests of industry and

commerce and the protection of the environment, and therefore never entirely satisfy everyone. What

is important is that the treaties are properly implemented, not only in law but also in fact. As with

human rights treaties, implementation can vary greatly in practice.

The development of the subject has produced certain new concepts, such as the ‘precautionary

principle’, ‘polluter pays’, and ‘sustainable development’. Some of these phrases have entered

everyday speech, ‘sustainability’ in particular being a mantra much loved by politicians. One must

be careful to distinguish such concepts from principles of international law, such as the binding

nature of treaties. Whether the concepts represent legal obligations depends on the extent to which

they have been translated into treaty rules or applied by international courts and tribunals. At the

moment they are for the most part no more than ‘soft law’.

They are discussed below.

Like other specialised areas of international law, IEL is not self-contained. To understand IEL

properly, one needs to see it as the application of international law to environmental problems. This

requires a basic knowledge of general international law, and the law of treaties in particular.

Although there are many treaties whose subject matter is clearly environmental, unlike several areas

of international law there is no one multilateral treaty that forms either the basis of the subject, like

the Chicago Convention on International Civil Aviation 1944, or contains the basic rules, like the

UN Convention on the Law of the Sea 1982. To find IEL on any particular area one may have to

examine several treaties, including some that may not immediately seem relevant to the

environment. A treaty on any subject may include provisions that are concerned with the

environment or are relevant to environmental issues. The parameters of the subject are therefore not

well-defined.

A particular feature of IEL is the use of ‘framework’ treaties: multilateral treaties that provide a

structure of principles that are elaborated by the

4. See Churchill and Scott, ‘The MOX Plant Litigation: The First Half-Life’ (2004) ICLQ 643–76.

5. See p. 11 above.

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adoption later of detailed annexes, schedules or protocols or by national action. The Conventions on

Climate Change and Biological Diversity of 1992 are prime examples (see below).

International organisations, in particular the UN and the UN specialised agencies, have played a

major part in developing IEL and in promoting the use of consensus

as the basis for reaching

agreement in international treaty negotiations. Given the need when negotiating an environmental

treaty to balance competing interests to achieve a text that has a chance of being widely ratified,

reaching consensus is vital to the effectiveness of the treaty. International organisations also play an

important role in monitoring the implementation of the treaties.

What is the environment?

We all have our own concept of the environment, which can range from the weather to our next-

door neighbours. Since IEL has developed quickly and without a coherent structure, there is no one

definition. In each case, what is meant by ‘the environment’ must be gathered from the treaty

concerned. Sometimes, a definition raises more questions than it answers. In the Protocol to the

Antarctic Treaty on Environmental Protection 1991

the environment is defined to include ‘the

intrinsic value of Antarctica, including its wilderness and aesthetic values’ – whatever that may

mean in legal terms.

There now follows a brief outline of the development of IEL, some of its more important

concepts, and certain environmental treaties.

The development of international environmental law

IEL could be said to have begun in a small way with the Trail Smelter arbitral award in 1938.

Although there were a few environmental treaties in the 1940s and 1950s, mostly about fauna

(whales, fish, birds and seals) and oil pollution, the start of the IEL era proper began with the

Stockholm Declaration of Principles 1972, adopted by the UN Conference on the Human

Environment (UNCHE).

Principle 21 largely reflects the Trail

6. See p. 60 above on consensus.

7. ILM (1991) 1460; UKTS (1999) 6; ATS (1998) 6; B&B Docs. 468. The title is clumsy: it is the Protocol

that deals with the environment, not the Antarctic Treaty.

8. An ILC draft shows the problem in defining the environment as including ‘the characteristics of