Are twentieth-century marine conservation conventions adaptable to twenty-first century goals and principles?: Part I

International Journal of Marine and Coastal Law

Volumn 12, Issue 3, 1997, Pages 307-339

  Birnie, Patricia ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

CONSERVATION; CONSERVATION CONVENTIONS; ENVIRONMENTAL POLICY; ENVIRONMENTAL PROTECTION; INTERNATIONAL AGREEMENT; INTERNATIONAL AGREEMENTS; MARINE CONSERVATION; MARINE MANAGEMENT;

EID: 0031414861     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180897X00220     Document Type: Article

References (73)

1. Official text with Annexes, Index and Final Act, The Law of the Sea (United Nations, New 2 York, 1983). Entered into force 16 November 1994.
2. Report of Conference, including text of Stockholm Declaration and Action Plan, UN Doc. A/ CONF. 48/14/REV.1 (1972).
3. For analysis, see P.W. Birnie and A.E. Boyle, International Law and the Environment (Oxford, Clarendon Press, 1992), pp. 39ff and passim;
4. P. Sands, Principles of International Environmental Law (4 vols., Manchester, 1995), pp. 25-61.
5. Texts of Rio Declaration on Environment and Development, Agenda 21, related instruments and commentary in S.P. Johnson (ed.), The Earth Summit (London/Dordrecht/Boston, Graham & Trotman/Martinus Nijhoff, 1993, reprinted 1995).
6. For texts of some of these see P.W. Bimie and A.E. Boyle, Basic Documents on International Law and the Environment (Oxford, Clarendon Press, 1995); for analysis see Birnie and Boyle, note 2 above, passim; and P. Sands, note 2 above, especially vol. 1, Part II, pp. 181-242; for documents, see vols. 2-4 thereof.
7. Text in I. Brownlie (ed.), Basic Documents in International Law (Oxford, Clarendon Press, 4th ed., 1995), p. 388;
8. see also P. Bimie, International Regulation of Whaling (2 vols., Dobbs Ferry, Oceana, 1985);
9. and L. Leonard, "Recent Negotiations Toward the International Regulation of 6 Whaling", (1961) 35 AJIL 90.
10. World Conservation Strategy, prepared by the International Union for Conservation of Nature and Natural Resources (IUCN) with the advice, co-operation and financial assistance of the United Nations Environment Programme (UNEP) and the World Wildlife Fund (WWF) in collaboration with the Food and Agriculture Organization of the United Nations (FAO) and the United Nations Educational, Scientific and Cultural Organization (Unesco) (1980). Updated for UNCED as Caring for the Earth: A Strategy for Sustainable Living (Gland, Switzerland, IUCN, 11 1991).
11. Our Common Future (Oxford, OUP, 1987); sent to all governments and UN bodies by the UN General Assembly which invited them to take account of its recommendations in formulating their policies and programmes: UN Doc. A/C. 2/42/L. 81.
12. R. Munro and J. Lammers (eds.), Environmental Protection and Sustainable Development (London/Dordrecht/Boston, Graham & Trotman/Martinus Nijhoff, 1986).
13. OECD and the Environment (OECD, Paris, 1986). On this see Birnie and Boyle, note 4 above at pp. 109-11.
14. On the background to these see D. Freestone and 1. IJlstra (eds.), The North Sea: Perspectives on Regional Environmental Co-operation Special Issue (1990) IJECL 5
15. especially P. Liers, "The History of the International North Sea Conferences" at pp. 3-14.
16. There is now considerable literature and bibliography on this principle. See D. Freestone and E. Hey, The Precautionary Principle and International Law (The Hague/London/Boston, Kluwer Law International 1996);
17. and L. Gundling, "The Status in International Law of the Precautionary Principle", (1990) 5 IJECL 23.
18. On its application to fisheries, see G.J. Hewisson, "The Precautionary Approach to Fisheries Management. An Environmental Perspective", (1996) 11 IJMCL 301-32, which provides a comprehensive bibliography at 302-3, note 2;
19. see also J.S. Gray and J.M. Bewers, "Towards a Scientific Definition of the Precautionary Principle", (1996) 32 Marine Pollution Bulletin 768-71;
20. and J.M. McDonald, "Appreciating the Precautionary Principle as an Ethical Evolution in Ocean Management", (1995) 26 Ocean Development and International Law 255-86.
21. See also its relation to the concept of Particularly Sensitive Sea Areas in K. Gjerde and D. Freestone (eds.), "Special Issue: Particularly Sensitive Sea Areas-An Important Environmental Concept at a Turning Point", (1994) 9 IJMCL 4.
22. For example, the IMO Convention on Oil Preparedness Response and Co-operation, London, 1990, (1991) 30 ILM 735, referred to the polluter-pays principle as a principle of law;
23. the Convention for the Protection of the Marine Environment of the Baltic Sea Area, Helsinki, 1992
24. the Convention on the Protection of the Black Sea against Pollution, Bucharest, 1992
25. and the Convention for the Protection of the Marine Environment of the North-East Atlantic, Paris 1992
26. all refer to the precautionary principle; the UN Framework Convention on Climate Change, New York, 1992
27. refers to "common concern"; the UN Agreement on Straddling Stocks and Highly Migratory Fish Stocks, New York, 1995
28. provides for the application of the precautionary principle and lists the relevant criteria for this. See also the extensive range of examples given by Sands, note 2 above at chapter 6, "General principles and rules", pp. 184-237.
29. As illustrated, for example, by R. Churchill and V. Lowe, The Law of the Sea (Manchester, Manchester University Press, 1983; new revised ed., 1988);
30. and E.D. Brown, The International Law of the Sea (2 vols., Aldershot, Dartmouth, UK; Brookfield, USA; Singapore, Sydney, 22 1994), passim. Agreement relating to Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982; text in Brown, note 21 above, vol. 2, Doc. 12.10; for details, see ibid. at pp. 10-11 1 and 458-477, especially 470-473.
31. MSY, a concept formulated in the 1950s before the UNCLOS-I, has been much criticised and consequently modified in practice; for one current view, see G.L. Kesteven, "MSY Revisited", (1997) 21 Marine Policy 73-82.
32. W. Burke, The New International Law of Fisheries (Oxford, Clarendon Press, 1994), chapter 5, pp. 199-254.
33. UNCED's Agenda 21 reformulates this provision but does not substantially illuminate its latent ambiguities. See P. Birnie, "UNCED and Marine Mammals", (1993) 17 Marine Policy 501-14.
34. E.g. the International Convention for the North-West Atlantic Fisheries (ICNAF), 157 UNTS 157, replaced in 1978 by the Convention on Future Multilateral Co-operation in the North West Atlantic Fisheries (NAFO), text in the Marine Mammal Commission Compendium of Selected Treaties, International Agreements, and Other Relevant Documents on Marine Resources, Wildlife and the Environment (3 vols., Washington, DC, Marine Mammal Commission 1994), vol. 1, p. 1260;
35. the North East Atlantic Fisheries Convention 1959 (NEAF), 486 UNTS 158, replaced in 1980 by the Convention on Future Multilateral Co-operation in North East Atlantic Fisheries (NEAF); text in the Marine Mammal Commission Compendium, p. 1280.
36. See Structure and Process of the 1993-1995 United Nations Conference on Straddling Stocks and Highly Migratory Fish Stocks (FAO Fisheries Circular No. 898, FID/C 898, FAO, Rome, December 1995), Introduction, pp. 1-32 at p. 1.
37. This report sets out the history of this conference and its proceedings as well as the text of the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, concluded on 4 August 1995; UN Doc. A/CONF 164/38, 7 September 1995; text also in (1995) 34 ILM 1,542-80. On such conflicts, see E. Miles and W. Burke, "Pressures on the UN Convention on the Law of the Sea of 1982 Arising from New Fisheries Conflicts: The Problems of Straddling Stocks", (1989) 20 Ocean Development and International Law 344.
38. Protocol Concerning Mediterranean Specially Protected Areas, Geneva, 1982
39. to Convention on the Protection of the Mediterranean Sea against Pollution, Barcelona, 1976;
40. texts in Marine Mammal Commission Compendium, note 33 above at pp. 2145-79 and 2144-84 respectively.
41. 60 protocol Concerning Specially Protected Areas and Wildlife, Kingston, 1990 and 1991
42. to Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, Cartagena de Indias, 1983;
43. texts in Marine Mammal Commission 61 Compendium, note 33 above at pp. 2136-42 and 2299-310 respectively.
44. Convention on Wetlands of International Importance, Ramsar, 1971, (1972) 11 ILM 963.
45. I. Brownlie, Principles of Public International Law (Oxford, Clarendon Press, 4th ed., 1990), chapter 25, p. 604. namibia Advisory Opinion [1971] ICJ Rep 16 at 47.
46. G. Schwarzenberger, A Manual of International Law (London, Stevens & Sons, 5th ed., 1969) at p. 165 identifies seven techniques of treaty interpretation, namely summary, literal, systematic, logical, historical, functional and authoritative; in effect he further subdivides the three main techniques;
47. see also I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester, Manchester University Press, 2nd ed., 1984), pp. 114ff;
48. G. Fitzmaurice, "The Law and Procedure of the International Court of Justice 1951-1954: Treaty Interpretation and Other Treaty Points", (1957) 33 BYIL 203 at 204ff;
49. and P. Reuter, Introduction to the Law of Treaties (London, New York, Pinter, 1989).
50. Brownlie, note 64 above at p. 626. He regards many so-called rules and principles as question- 68 begging and contradictory. Schwarzenberger, note 66 above at p. 166; for an expose of the possibilities of different interpretations by national administrations and courts, see Restatement of the Law: The Foreign Relations Law of the United States, as adopted and promulgated by the American Law Institute at Washington, DC, 14 May 1986 (St. Paul, MN, American Law Institute Publishers, 1987), vol. 1, pp. 190-204.
51. For some examples, see D.W. Bowett, The Law of International Institutions (London, Stevens, 4th ed., 1982), pp. 147-51.
52. Certain Expenses of the United Nations [1962] ICJ Rep 151.
53. E.g. L. Gross, "Expenses of the United Nations for Peace-keeping Operations: the Advisory Opinion of the ICJ" (1963) 17 International Organization 1-35.
54. Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep 174;
55. see also South West Africa Cases [1962] ICJ Rep 319;
56. Namibia Case [1971] ICJ Rep 16.
57. F. Vallat, (1959) 97 Hague Receuil 249-50, cited by Brownlie, note 64 above.
58. Reuter, note 66 above at p. 73, para. 138; see also D. Akande, "The International Court of Justice and the Security Council: Is There Room for Judicial Control of the Political Organs of 8 the United Nations?" (1997) 46 ICLQ 309-43.
59. see also R. Jennings, "General Course on Principles of International Law", (1967-11) 121 Hague Receuil 544, who emphasises that textual interpretation in international law is an art not a science, although it is a characteristic of the art to disguise the process of interpretation as a science.
60. D. Vignes, "The Impact of International Organisations on the Development and Application of Public International Law" in R.St.J. Macdonald and D.M. Johnston (eds.), The Structure and Process of International Law (Dordrecht/Boston/Lancaster, Nijhoff, 1983, reprinted, 1980), pp. 810-12;
61. N.D. White, The Law of International Organisations (Manchester, Manchester University Ptess, New York, 1996).
62. C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge, Cambridge University Press, 1996).
63. R Higgins, Problems and Process: International Law and How We Use It (Oxford, Clarendon Press, 1994).
64. R. Higgins, "Policy Considerations and the International Judicial Process", (1968) 17 ICLQ 58 at 58-9, cited in Higgins, note 94 above at p. 2. See also her view that it is wrong to suggest that the policy science approach means whatever the policy-maker wants, leading to the use of international law as a device for post facto justification of decisions without really taking international law into account. This she suggests begs the question of what law is: ibid., p. 7. 96 White, note 91 above at pp. 18-22.
65. Ibid., p. 132, citing F. Seyersted, United Nations Forces (1996), pp. 133-4.
66. N. Kontou, The Termination and Revision of Treaties in the Light of New Customary International Law (Oxford, Clarendon Press, 1994); see also Burke, note 31 above; Churchill and Lowe, note 21 above; Brown, note 21 above and the extensive bibliography provided by Kontou, pp. 158-66.
67. These include the Fisheries Jurisdiction Case (UK v. Iceland) [1973] ICJ Rep 1, and the decision on the Merits [1974] ICJ Rep 1; and the Spanish fishermen's cases before the ECJ, e.g. Case 812/ 79, A.-G. v. Burgoa [1980] ECR 2787;
68. the La Bretagne Arbitration; the Canada-France Arbitration on the Dispute concerning Filleting within the Gulf of St. Lawrence, award of 17 July 1986, reprinted in French in (1986) 90 Revue générale de droit international public 713-86 and 831-96;
69. On this see T.L. McDorman, "French Fishing Rights in Canadian Waters: the 1986 La Bretagne Arbitration", (1989) 4 IJECL 52-64 which concluded that Canada's actions following the tribunal's decision had de facto terminated the 1972 Canada-France Agreement which gave rise to the disputes, relying on wording in the tribunal's majority decision to support its view that quotas should be based on conservation considerations, not vessel capacity and number.
70. Texts of Agreement and Protocol in Marine Mammal Commission Compendium, note 33 above at vol. 1, pp. 1296-300 and 1301-2 respectively; Ecuador, Mexico, Peru, Nicaragua and El Salvador concluded an Eastern Pacific Tuna Agreement on 21 July 1989, acknowledging coastal state jurisdiction for conservation and management of EEZ resources; cited by Kontou, note 117 above at p. 63, note 135.
71. For texts of most of these see Marine Mammal Commission Compendium, note 33 above at vol. 3, pp. vi-ix, 1621-2342 and 2568.
72. See Maffei above, "The International Convention for the Regulation of Whaling", at 287.
73. See, for example, E. Hey, T. IJlstra and A. Nollkaemper, "The 1992 Paris Convention for the Protection of the Marine Environment of the North-East Atlantic: A Critical Analysis" (1993) 8 IJMCL 1-49 with text of the new convention at 50-76.