scholarly journals THE APPLICATION OF THE PRECAUTIONARY PRINCIPLE IN INTERNATIONAL LAW: AN ANALYSIS OF THE CONTRIBUTION OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

2017 ◽  
Vol 14 (29) ◽  
pp. 229-259
Author(s):  
Tiago Vinicius Zanella ◽  
Ricardo Pereira Cabral
Keyword(s):  
International Law ◽  
Marine Environment ◽  
Precautionary Principle ◽  
Law Of The Sea ◽  
Scientific Uncertainty ◽  
International Tribunal ◽  
Irreversible Damage ◽  
Precautionary Approach ◽  
The Precautionary Principle ◽  
The Law

The precautionary principle, invoking the notions of risk, scientific uncertainty and irreversible damage, takes the solution of the environmental issues of the global risk society to the legal domain. Its application in international law has evolved significantly, especially with respect to the protection of the marine environment. This principle, which was much ignored in its practical application, is gradually being used in international environmental protection. The purpose of this paper is to analyze how the jurisprudence of the ITLOS has contributed to the development and application of the precautionary principle for the protection of the marine environment and how the International Tribunal for the Law of the Sea contributed to the development of this principle in international law. Thus, although we are still not able to safely say that the precautionary approach is included in international law as an unchallenged principle, it has been given great steps over the last few years in this direction. Particularly with the contributions of the international jurisprudence of the ITLOS, the precautionary approach is evolving and becoming an autonomous principle, with less uncertainty and subjectivity that caused so much apprehension for the States and doubt in the doctrine.

Precaution and the Protection of Marine Biodiversity in Areas beyond National Jurisdiction

2012 ◽  
Vol 27 (4) ◽  
pp. 773-781 ◽  
Author(s):  
Rosemary Rayfuse
Keyword(s):  
Precautionary Principle ◽  
Law Of The Sea ◽  
Marine Biodiversity ◽  
Precautionary Approach ◽  
Legal Development ◽  
The Precautionary Principle ◽  
Marine Environmental Protection ◽  
National Jurisdiction ◽  
The Law ◽  
Marine Environmental

Abstract As a post-LOSC legal development, the precautionary principle is nowhere enunciated in the Law of the Sea Convention. Nevertheless, in the thirty years since the LOSC’s adoption, the significance of the precautionary principle for marine environmental protection in general and marine resource conservation in particular has been recognised. The language of precaution, the precautionary principle and the precautionary approach have entered the lexicon of the law of the sea, permeating the international community’s efforts to manage and conserve marine biodiversity in areas beyond national jurisdiction. The challenge remains, however, of crafting and implementing management and governance regimes capable of achieving the objectives of precautionary management and turning the rhetoric of precaution into a reality.

The Contribution of the International Tribunal for the Law of the Sea to the Protection of the Marine Environment

2021 ◽  
Vol 9 (2) ◽  
pp. 354-369
Author(s):  
Tomas Heidar
Keyword(s):  
Environmental Impact ◽  
Marine Environment ◽  
Environmental Law ◽  
Law Of The Sea ◽  
Due Diligence ◽  
International Tribunal ◽  
International Environmental Law ◽  
Precautionary Approach ◽  
Environmental Impact Assessments ◽  
The Law

Abstract In its 25 years’ history, the International Tribunal for the Law of the Sea has dealt with a number of environmental cases. This has primarily occurred in the context of proceedings relating to the prescription of provisional measures and in advisory proceedings. This article explains how the Tribunal has reaffirmed and developed the basic environmental principles in Part XII of the Law of the Sea Convention, including the obligation to protect and preserve the marine environment, the precautionary approach, the duty to conduct environmental impact assessments, and the duty to cooperate, as well as the duty of due diligence, thereby contributing to the protection of the marine environment. Part XII of the Convention is a product of the 1970s and its provisions therefore reflect the state of international environmental law at that time. However, the Tribunal has interpreted and applied the aforementioned principles consistently with the contemporary state of international environmental law.

Normative propositions of the International Tribunal for the Law of the Sea

2021 ◽  
Vol 11 (3) ◽  
pp. 3-18
Author(s):  
Roman Kolodkin
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Legal Norms ◽  
Judicial Decisions ◽  
The Law ◽  
Obiter Dictum ◽  
International Law Commission ◽  
Advisory Opinions

Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.

The International Tribunal for the Law of the Sea and General International Law

2007 ◽  
Vol 22 (3) ◽  
pp. 351-367 ◽  
Author(s):  
Michael Wood
Keyword(s):  
International Law ◽  
Case Law ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Applicable Law ◽  
The Law

AbstractAfter addressing some preliminary points, the presentation first stresses the importance of distinguishing clearly between jurisdiction and applicable law. Then it considers how a court or tribunal whose jurisdiction ratione materiae is largely con fined to the interpretation and application of a particular treaty may nevertheless refer to general international law. The author suggests six possible ways in which recourse may be had to general international law and analyzes the case-law of the International Tribunal for the Law of the Sea in that regard. He then points out the relevance of expertise in general international law for the composition of the Tribunal. By way of conclusion, the author suggests that when any court or tribunal acting under a limited conferral of jurisdiction has recourse to general international law, it should—in the interest of transparency and so as to avoid the appearance of an excess of jurisdiction— explain the basis on which it is doing so. In his view, the Tribunal has made an important contribution to the law of the sea and to certain issues of general international law while acknowledging that the law of the sea can only be properly understood within the context of international law as a whole.

Part I Assessing the UN Institutional Structure for Global Ocean Governance: The UN’s Role in Global Ocean Governance, 5 The Role of International Tribunal for the Law of the Sea (ITLOS) in Global Ocean Governance

2018 ◽  
Author(s):  
Golitsyn Vladimir
Keyword(s):  
International Law ◽  
Global Ocean ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Progressive Development ◽  
Ocean Governance ◽  
United Nations Convention ◽  
The Law ◽  
Advisory Opinions

This chapter focuses on the role of the International Tribunal for the Law of the Sea (ITLOS) in global ocean governance. Established under the United Nations Convention on the Law of the Sea (UNCLOS), the jurisdiction of the ITLOS comprises all disputes and all applications concerning interpretation or application of the Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal. In the performance of its responsibilities, ITLOS has accumulated a body of jurisprudence which constitutes its contribution to the progressive development of international law of the sea and thus global ocean governance. The chapter discusses the most important examples of the ITLOS's contribution to the global ocean governance, such as dealing with contentious cases, requests for provisional measures, and prompt release cases as well as providing advisory opinions.

scholarly journals Prompt Release of Detained Foreign Vessels and Crews in Matters of Marine Environment Protection

2005 ◽  
Vol 33 (2) ◽  
pp. 240-255 ◽  
Author(s):  
Heiki Lindpere
Keyword(s):  
United Nations ◽  
Marine Environment ◽  
Law Of The Sea ◽  
Financial Security ◽  
Environment Protection ◽  
International Tribunal ◽  
State Party ◽  
The United Nations ◽  
The Law ◽  
Flag State

Article 292 of the United Nations 1982 Convention on the Law of the Sea (Convention) reads:1. 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 this Convention for the prompt release of the vessel or its crew upon posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining state under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.2. The application for release may be made only by or on behalf of the flag state of the vessel.3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. The authorities of the detaining state remain competent to release the vessel or its crew at any time.4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining state shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew.

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