Prohibition of massive and serious pollution of marine environment as a jus cogens. Identification, legal bases and consequences in view of the recent work of the International Law Commission

Abstract

Taking into account the progressive development of international law in recent decades relating to the protection of environment it is remarkable that until recently international courts and tribunals took a rather restrictive approach concerning reference to the hierarchy of norms. This is in stark contrast to international human rights law as some of its key rules have already been identified as jus cogens. Thus, drawing from these developments there is a need for recommencing the debate concerning the existence of peremptory norms relating to the protection of the environment. At the normative level allocating the jus cogens logic to this area can certainly bring the needed structure of community interest, instead of the reciprocal paradigm and consequently influence more strongly future normative development of this branch of law. The article evaluates whether specific obligations to protect the marine environment can be considered as a peremptory norm of general international law. The current work of the International Law Commission and discussion on its reports in the United Nations General Assembly Sixth Committee are used as tools for appraisal of the state of the law in this respect. It is undeniable, that obligations to protect the marine environment reflect fundamental values of the international community, which are universally applicable. As a result, the normative weights of these obligations clearly advocates for the recognition of peremptory norm status of particular prohibitive rules concerning protection of the marine environment.