Navigating the Seas of Soft Law in the Implementation of the Law of the Sea Convention
By Dita Liliansa*
Published on 15 March 2023
This essay explores the role of regional soft law instruments in implementing the United Nations Convention on the Law of the Sea (UNCLOS) to protect endangered sea turtles and their habitats in Southeast Asia. The region boasts the highest concentration of marine species in the Indian and Pacific Oceans, and the Association of Southeast Asian Nations (ASEAN) has a long history of regional co-operation on marine environmental issues dating back to 1977. Despite the many pressing marine environmental concerns, Southeast Asia has placed considerable attention to sea turtle conservation, evidenced by the adoption of the ASEAN MOU on Sea Turtles, in addition to five other soft law instruments beyond ASEAN’s purview. These include the Memorandum of Agreement establishing Turtle Islands Heritage Protected Area (TIHPA MOA), the Memorandum of Understanding on the Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-East Asia (IOSEA Turtles MOU), the Sulu-Sulawesi Marine Eco Region MOU (SSME MOU), the Regional Plan of Action of the Coral Triangle Initiative on Coral Reefs, Fisheries and Food Security (CTI-CFF RPOA), and the Regional Plan of Action of Sea Turtle Foraging Habitats in South East Asian Waters (RPOA Sea Turtle). These instruments demonstrate Southeast Asia’s interest in protecting marine turtles and their preference for soft law instruments and informal arrangements over binding instruments, such as treaties.
UNCLOS, as a living treaty, co-exists with global and regional rules and standards, including soft law instruments, which can shape and influence the general obligations specified in UNCLOS. Soft law instruments may be considered an ‘agreed understanding’ of terms of a treaty, and can have an impact on the development of customary international law by influencing and generating widespread and consistent state practice and providing evidence of opinio juris. Signatory states to such instruments are expected to take them into account, even if they later choose to deviate from them. At a minimum, negotiating and adopting those instruments require a good faith commitment, which creates a reasonable expectation that they will be adhered to if possible. The Whaling case highlighted the importance of soft law instruments in international law-making when the International Court of Justice (ICJ) mandated that parties give due regard to non-binding recommendations adopted by international organisations. Similarly, in the Chagos advisory opinion, the ICJ cited a broad range of soft law instruments, such as United Nations General Assembly resolutions, to support its findings, further demonstrating the significance of soft law in the development of international law. These cases also underscore the role of international organisations in law-making processes and the significance of epistemic communities.
Due Diligence Obligation and Duty to Co-operate to Protect Endangered Species and Habitats
UNCLOS is the umbrella framework for the protection and conservation of the marine environment, with two key provisions, Articles 192 and 194(5), being relevant to the protection of endangered sea turtles and their habitats. Article 192 obligates states to protect and preserve the marine environment, while Article 194(5) requires measures that safeguard ecosystems and habitats of threatened marine species. The South China Sea arbitration emphasised the due diligence obligation of states under UNCLOS, specifically in relation to endangered species and their habitats. The arbitral tribunal concluded that states have a due diligence obligation not only to prevent the direct exploitation of species facing international protection and at risk of extinction, but also to avoid harm that may arise from activities that affect these species indirectly by destroying their habitat. This due diligence obligation pertains to conduct, not to results, and requires states to deploy reasonable measures, exercise the best possible efforts, and take all necessary steps to fulfil this obligation. Although UNCLOS does not specify which marine species qualify as depleted, threatened, or endangered, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) can be used to determine their status, as demonstrated in the South China Sea arbitration. All species of sea turtles in Southeast Asia are classified as endangered or threatened according to CITES, thus creating a due diligence obligation for Southeast Asian states to protect them under Articles 192 and 194(5) of UNCLOS.
However, in fulfilling a state’s obligation to act with due diligence, it is essential to consider other obligations, as confirmed by the ICJ in the 2015 Costa Rica v Nicaragua cases. In his separate opinion of these cases, Judge Owada noted that the process of carrying out the due diligence is a holistic one, in which other obligations can be a vital element, rather than a separate and independent obligation. Given that the migration of sea turtles spans regions and borders, unilateral conservation measures in one area are insufficient for their protection, making co-operation among different nations and regions essential to their survival. As such, the duty to co-operate is an important constituent element to fulfil the due diligence obligation to protect endangered sea turtles and their habitats. Nevertheless, it is noteworthy that the duty to co-operate can also exist as an independent obligation that can be violated on its own.
Article 197 of UNCLOS mandates that states co-operate on a global or regional basis to develop ‘rules, standards and recommended practices and procedures’ to protect and preserve the marine environment. Additionally, Article 123 of UNCLOS requires states bordering an enclosed or semi-enclosed sea to co-operate with each other to manage marine living resources and protect the marine environment. The six regional instruments for sea turtle protection in Southeast Asia reflect the continuous efforts of Southeast Asian states to collectively set rules, standards, practices, and procedures for sea turtles protection. While the TIHPA MOA and the SSME MOU exhibit direct co-operation among states, the other four instruments are examples of international co-operation through either regional or international organisations. Permanent institutions such as ASEAN are preferred to manage co-operation among multiple states in Southeast Asia.
It can be argued that the regional instruments adopted for sea turtle protection in Southeast Asia serve two purposes. First, they embody regional co-operation as envisaged in Article 197 of UNCLOS, and possibly Article 123 of UNCLOS, enforcing the obligation to co-operate as an essential element in fulfilling the due diligence obligation to protect endangered sea turtles and their habitats. Second, the institutional mechanisms established by these instruments may generate rules, standards and recommended practices and procedures that can illuminate the scope and content of the due diligence obligation under Articles 192 and 194(5) of UNCLOS.
Adoption and Enforcement of Appropriate Protective Measures
The due diligence obligation goes beyond merely adopting appropriate rules and measures. It also requires a certain level of vigilance in their enforcement and the exercise of administrative control. The regional soft law instruments adopted for sea turtle protection in Southeast Asia suggest minimum conservation and management measures that Southeast Asian countries can be expected to take, but the range of measures may vary when the circumstances of the case so require. States can adopt more stringent measures, but less effective measures will be subject to further assessment based on particular facts and circumstances. The discretion of states in selecting appropriate protective measures is essentially limited if specific measures are necessary to avoid harm.
In addition to the adoption of appropriate rules and measures, enforcement of the prescribed rules and measures is crucial for the fulfilment of the due diligence obligation. Some of the regional instruments have put in place mechanisms to promote compliance among their participating states, such as reporting, review, capacity building, technical assistance, and financial assistance. The CTI-CFF has been able to encourage its members to generate a national plan of action with clear outputs and indicators, and to report their implementation regarding the protection of sea turtles and their habitats. The IOSEA Turtles MOU has established a voluntary reporting mechanism to track implementation progress, while the RPOA Sea Turtle incorporates an enforcement and legislation programme that includes reviewing, revising, and harmonising existing national policies and laws with international agreements.
The regional instruments adopted for the protection of sea turtles and their habitats in Southeast Asia are interrelated, complementary, and mutually reinforcing. The absence of a particular conservation measure in one instrument can be addressed by others. Although these instruments may differ in the protective measures they identify and the standards and expectations they set, their institutional interactions either directly or through their shared member states have led to restatements of key concepts and principles across the various instruments. However, the use of different instruments with similar scopes (geographic areas and species covered), membership and substantive commitments may lead to fragmentation and forum shopping. For instance, Cambodia has adopted the RPOA Sea Turtles, which covers all sea turtle species and their foraging habitats in Southeast Asia, but is not a party to the ASEAN MOU on Sea Turtles, which covers all sea turtle species and habitats (not limited to foraging habitats) in Southeast Asia. Nevertheless, the regional instruments discussed in this essay demonstrate varying degrees of coordination in their objectives and measures. They frequently reference and build upon each other’s best practices, enabling for more coherent measures for sea turtle protection in Southeast Asia. In the case of Cambodia, for instance, the IOSEA Turtles MOU serves as a complementary instrument to address any gaps in protection under the RPOA Sea Turtles. As discussed here, the two instruments share similar concepts and terminologies, with almost identical activities or actions elaborated to achieve their objectives.
Conclusion
Southeast Asia’s preference for soft law instruments and informal arrangements has been critical in promoting sea turtle conservation. The adoption of various soft law instruments in the region reflects its commitment to protecting endangered sea turtles and their habitats. These instruments not only facilitate regional co-operation but also generate rules, standards and recommended practices and procedures that guide state behaviours and illuminate the scope of the due diligence obligation to protect endangered sea turtles and their habitats. Although the regional instruments may differ in their protective measures and standards, they are interrelated, complementary, and mutually reinforcing, frequently building upon each other’s best practices. Ultimately, co-operation among states is essential to ensure the survival of sea turtles, which migrate across borders and regions.
*Dita Liliansa is a research associate at the Ocean Law & Policy Programme, National University of Singapore. This blog provides a brief summary of her article, Sea Turtles Protection in Southeast Asia: Linkages and Role of Soft Law Instruments in the Implementation of the Law of the Sea Convention, International Journal of Marine and Coastal Law, Vol. 37(4) (2022)