Abstract
The term ‘implementation’ is used in the literature in narrow and broad forms. In brief, the narrow version sees implementation as referring to the transformation or incorporation of international obligations (with legally binding rules) and commitments (with non-legally binding rules) into national law only, whereas the broader version also includes changes in other forms of state practice (beyond the introduction and/or amendment of national legislation, including the application of general concepts in concrete circumstances) and target behaviour aimed at effectuating the requirements of the international instrument/national legislation. Further, conceptions differ as to who can be actors in implementing activities. In the narrow version, only states may implement international agreements, as national legislation is their remit. In the broad version, other actors can contribute to the implementation process, typically non-governmental organizations (NGOs) and international organizations, and implementation is understood as all activities deliberately and explicitly aimed at bringing the behaviour of target groups into line with the requirements of international agreements, and national legislation insofar as it reflects international commitments.
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Notes
- 1.
The legal status of the precautionary approach will not be discussed in any detail here, but some brief comments are given in footnotes on how publicists and international courts and tribunals have assessed the legal status of the approach.
- 2.
- 3.
- 4.
Ministerial Declaration on the Protection of the North Sea, 14(4) Environmental Conservation 1987, pp. 357–361. https://doi.org/10.1017/S0376892900016878.
- 5.
Ministerial Declaration of the Third International Conference on the Protection of the North Sea, The Hague, 8 March 1990, available at https://www.eea.europa.eu/policy-documents/ministerial-declaration-of-the-third (accessed 23 August 2020).
- 6.
Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), Paris, 29 September 1992, U.N.T.S. Vol. 2354, p. 67.
- 7.
Whereas the precautionary principle is used in the OSPAR Convention and other international environmental agreements, the precautionary approach is used in the Rio Declaration and, as we shall see in the next section, international fisheries agreements. For the sake of consistency, I will use approach in the following, except when referring to an author who uses principle.
- 8.
Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, Annex 1, Rio de Janeiro, 3–14 June 1992.
- 9.
Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, U.N.T.S. Vol. 1760, p. 79. The Convention does not use the word ‘precautionary’, but the text reflects generally accepted definitions of the principle; cf. Preamble.
- 10.
United Nations Framework Convention on Climate Change, New York, 9 May 1992, U.N.T.S. Vol. 1771, p. 107. The Convention was not signed at UNCED, but was opened for signature at UNCED on 3 June 1992.
- 11.
Sands and Peel (2018, p. 234).
- 12.
Ibid., p. 234.
- 13.
Gillespie (2007, pp. 71–72).
- 14.
Ibid., p. 71.
- 15.
Ibid., p. 71.
- 16.
Ibid., p. 71. The weak and strong versions differ as to ‘the nature of the threat, the triggering point for the principle, and the reversal of the burden of proof’ (ibid., p. 71). As application of the principle will rarely have all three of these on one side, attempts to ascertain the legal status of the principle should veer towards the weak version, according to Gillespie (ibid., p. 74).
- 17.
Ebben (2011, pp. 117–124).
- 18.
- 19.
- 20.
- 21.
As an example, Sands and Peel (2018, p. 239) note that there is sufficient evidence in state practice to argue that the precautionary principle reflects a rule of customary international law, at least within the context of the European Union. More widely, the principle shall, in their opinion, at least be applied in the interpretation of international instruments (ibid., p. 240).
- 22.
The precautionary principle was first invoked before the ICJ in New Zealand’s 1995 request concerning French nuclear testing, but the Court did not address the principle (Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court S Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, ICJ Reports 1995, p. 288). In the 1997 Gabčíkovo-Nagymaros judgement, the ICJ referred to the precautionary principle as among new norms and prescriptions in international environmental law (Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p. 7); while in the 1999 Southern Bluefin Tuna case, the Annex VII arbitral tribunal prescribed a precautionary approach in all but name (Southern Bluefin Tuna (Australia and New Zealand v. Japan), 39 ILM 1359 (2000), 4 August 2000). The ICJ took one step further in the 2010 Pulp Mills case, noting that while a precautionary approach may be relevant in the interpretation and application of a treaty, that does not mean that it operates as a reversal of the burden on proof (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 14). The 2011 Seabed Chamber Advisory Opinion, in turn, noted that the precautionary approach was on the way to achieving customary status (Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10).
- 23.
This paragraph builds on Hønneland (2004, pp. 10–11).
- 24.
Garcia (1994, p. 100).
- 25.
Ibid., p. 100.
- 26.
For an overview of these developments, see Kaye (2000, pp. 167–168, 187–197, 205–232).
- 27.
While the FSA in general applies to the conservation and management of straddling and highly migratory fish stocks beyond areas of national jurisdiction, Art. 6 (as well as the General principles in Art. 5 and the provisions on compatibility of management measures in Art. 7) applies equally to the conservation and management of such stocks within areas of national jurisdiction (Art. 3(1), 3(2)).
- 28.
See Annex I to the CCRF for an overview of its history.
- 29.
Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Rome, FAO, 24 November 1993, U.N.T.S. Vol, 2221, p. 91.
- 30.
Other areas covered are, inter alia, aquaculture, fisheries research and coastal area development.
- 31.
Precautionary Approach to Capture Fisheries and Species Introductions, FAO Technical Guidelines for Responsible Fisheries, No. 2, FAO, Rome, 1996.
- 32.
The remaining chapters concern precautionary approaches to fisheries research, fisheries technology and introduced species.
- 33.
Tellingly, the guidelines have been criticized for not containing any mechanism for risk assessment. See, e.g., Fenichel et al. (2008, p. 122).
- 34.
Hewison (1996, pp. 320–329).
- 35.
Garcia (1994, p. 120).
- 36.
Ibid., p. 104.
- 37.
Charles (2002, p. 683).
- 38.
Ibid., pp. 683–684.
- 39.
Gerrodette et al. (2002, p. 657).
- 40.
Ibid., p. 657.
- 41.
This is based on a search in the ISI Web of Science (www.webofknowledge.com) (accessed 21 May 2020).
- 42.
As to whether the precautionary approach has achieved customary status in the fisheries domain, there is little guidance available in case law or the literature. As one example of the latter, Schatz et al. (2019, p. 218) argue that since CCRF paragraphs 6.5 and 7.5.1 have been widely applied in Regional Fisheries Management Organizations (RFMOs), ‘it is submitted that the precautionary approach has become established as a general principle of fish stocks management’.
- 43.
Andresen et al. (2012, pp. 7–8).
- 44.
Wood and Sender (2017, p. 1).
- 45.
Ibid., pp. 2–3.
- 46.
- 47.
Jacobson and Weiss (1998, p. 4). It is unclear how exactly these authors see the second step assessed in terms of compliance and non-compliance. These concepts are normally used in studies of either individuals’ compliance with national law (as studied in criminology) or states’ compliance with international agreements (as studied in international law and international relations). Presumably, the authors see implementation as a matter for international law and international relations, leaving compliance to the criminologists.
- 48.
List and Rittberger (1998, pp. 72–76). See also Hønneland and Jørgensen (2003, pp. 29–31). The distinction between implementation at the normative and factual levels does not overlap completely with the output/outcome divide. The transformation and incorporation of international obligations in national law constitute implementation at the normative level, and ‘output’. Influence on target behaviour is implementation at the factual level, and ‘outcome’. Other forms of state practice that reflect international obligations are implementation at the factual level, and ‘output’.
- 49.
Victor et al. (1998b, pp. 3–5).
- 50.
For example, in Russia during the 1990s and early 2000s international NGOs such as Greenpeace and WWF were pivotal in implementing the state’s international commitments under various biodiversity and nature-protection treaties, as the national bureaucracy lacked finances, capacity and competence. This was done by formal or informal agreement or by explicit or implicit consent (Jørgensen and Hønneland 2006, pp. 16–18).
- 51.
This paragraph builds on Hønneland and Jørgensen (2003, p. 30).
- 52.
Jacobson and Weiss (1998, p. 4).
- 53.
- 54.
Victor et al. (1998b, p. 7).
- 55.
Ibid., p. 7.
- 56.
Friedrich (2008, pp. 1540–1541, 1551–1554).
- 57.
Ibid., pp. 1540–1543, 1546–1549.
- 58.
Ibid., p. 1541.
- 59.
Ibid., p. 1540.
- 60.
Ibid., p. 1559.
- 61.
Ibid., p. 1550.
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Hønneland, G. (2021). The Precautionary Approach, Implementation and State Practice. In: Blue Governance in the Arctic and Antarctic. Palgrave Studies in Maritime Politics and Security. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-72585-3_2
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