352
However, the coastal State retains the competence to regulate in a reasonable way
traditional fishing for conservation purposes.
6
Apart from these limitations to the exercise of coastal State’s sovereignty in its
territorial sea, case law highlights also another obligation based on Art. 194(4) of
the UNCLOS which provides for the obligation of States, in taking measures for the
protection of the marine environment, to refrain from unjustifiable interference with
activities carried out by other States in the exercise of their rights and in pursuance
of their duties in conformity with the Convention. In the Chagos arbitration, Art.
194(4) is found to be applicable in the territorial sea, since the tribunal considered
that the proclamation of the marine protected area by the UK unjustifiably interfered with the fishing rights of Mauritius and the fishing activities of its nationals in
the territorial sea surrounding the Chagos archipelago.
7
Consequently, recent case
law indicates that, in reviewing the exercise by the coastal State of its discretionary
power arising out of its sovereignty in its territorial sea, the judge examines not only
situations relating to innocent passage,
8
but also the compliance of the coastal State
with its obligations pursuant to Art. 2(3) and to Part XII of the UNCLOS. Besides,
the tribunal in the South China Sea arbitration confirmed that the environmental
obligations in Part XII apply to all States with respect to the marine environment in
all maritime areas and irrespective of where the alleged harmful activities took
place.
9
Finally, taking into account that the conservation of living resources is considered an element of the protection and preservation of the marine environment, it
has been observed that the general rules of Part XII are applicable with respect to
the management and protection of marine living resources in the territorial sea, as
well as in the EEZ of the coastal state, setting, thus, a limit to its discretion in these
matters.
10
Exclusive Economic Zone The question concerning the limits of the sovereign
rights of the coastal State in its EEZ has arisen, directly or indirectly, in certain
recent cases. In the Arctic Sunrise case the tribunal considered the applicability of
different legal bases which could justify the boarding, seizure and detention of the
6 Assuming that China is sovereign over Scarborough Shoal, it was found to be violating Art. 2(3)
by prohibiting the Filipino fishermen from exercising their traditional fishing rights in the territorial sea, PCA, South China Sea arbitration (Philippines v. China), Award, 12 July 2016, paras
808–809. The UNCLOS did not intend to alter acquired rights in the territorial sea and, thus, these
“established traditional fishing rights remained protected by international law”, ibidem, para. 804.
7 Chagos Marine Protected Area, Award, para. 540. Besides, due to the effect of Art. 297(3), the
tribunal confined itself to examining the interference caused by the measure of the UK with the
fishing activities of Mauritius only with respect to the territorial sea (see infra, Sect. 3.1.2(ii)).
Mauritius’ claim to traditional fishing rights in the territorial sea was not addressed, as the tribunal
examined the fishing rights of Mauritius arising out of the undertakings.
8 Such as the compliance by the coastal State with the obligation not to hamper innocent passage
or with the conditions provided in Arts. 27 and 28 of the UNCLOS concerning the exercise of its
criminal or civil jurisdiction. On the obligation concerning the harmless use of territory, ICJ, Corfu
Channel Case (UK v. Albania), Judgment, 9 April 1949, ICJ Reports 1949, p. 22.
9 South China Sea, Award, paras. 927 and 940.
10 Especially in view of its obligation in Art. 194(5). Wolfrum and Matz (2000), p. 451.
E. Scalieri
However, the coastal State retains the competence to regulate in a reasonable way
traditional fishing for conservation purposes.
6
Apart from these limitations to the exercise of coastal State’s sovereignty in its
territorial sea, case law highlights also another obligation based on Art. 194(4) of
the UNCLOS which provides for the obligation of States, in taking measures for the
protection of the marine environment, to refrain from unjustifiable interference with
activities carried out by other States in the exercise of their rights and in pursuance
of their duties in conformity with the Convention. In the Chagos arbitration, Art.
194(4) is found to be applicable in the territorial sea, since the tribunal considered
that the proclamation of the marine protected area by the UK unjustifiably interfered with the fishing rights of Mauritius and the fishing activities of its nationals in
the territorial sea surrounding the Chagos archipelago.
7
Consequently, recent case
law indicates that, in reviewing the exercise by the coastal State of its discretionary
power arising out of its sovereignty in its territorial sea, the judge examines not only
situations relating to innocent passage,
8
but also the compliance of the coastal State
with its obligations pursuant to Art. 2(3) and to Part XII of the UNCLOS. Besides,
the tribunal in the South China Sea arbitration confirmed that the environmental
obligations in Part XII apply to all States with respect to the marine environment in
all maritime areas and irrespective of where the alleged harmful activities took
place.
9
Finally, taking into account that the conservation of living resources is considered an element of the protection and preservation of the marine environment, it
has been observed that the general rules of Part XII are applicable with respect to
the management and protection of marine living resources in the territorial sea, as
well as in the EEZ of the coastal state, setting, thus, a limit to its discretion in these
matters.
10
Exclusive Economic Zone The question concerning the limits of the sovereign
rights of the coastal State in its EEZ has arisen, directly or indirectly, in certain
recent cases. In the Arctic Sunrise case the tribunal considered the applicability of
different legal bases which could justify the boarding, seizure and detention of the
6 Assuming that China is sovereign over Scarborough Shoal, it was found to be violating Art. 2(3)
by prohibiting the Filipino fishermen from exercising their traditional fishing rights in the territorial sea, PCA, South China Sea arbitration (Philippines v. China), Award, 12 July 2016, paras
808–809. The UNCLOS did not intend to alter acquired rights in the territorial sea and, thus, these
“established traditional fishing rights remained protected by international law”, ibidem, para. 804.
7 Chagos Marine Protected Area, Award, para. 540. Besides, due to the effect of Art. 297(3), the
tribunal confined itself to examining the interference caused by the measure of the UK with the
fishing activities of Mauritius only with respect to the territorial sea (see infra, Sect. 3.1.2(ii)).
Mauritius’ claim to traditional fishing rights in the territorial sea was not addressed, as the tribunal
examined the fishing rights of Mauritius arising out of the undertakings.
8 Such as the compliance by the coastal State with the obligation not to hamper innocent passage
or with the conditions provided in Arts. 27 and 28 of the UNCLOS concerning the exercise of its
criminal or civil jurisdiction. On the obligation concerning the harmless use of territory, ICJ, Corfu
Channel Case (UK v. Albania), Judgment, 9 April 1949, ICJ Reports 1949, p. 22.
9 South China Sea, Award, paras. 927 and 940.
10 Especially in view of its obligation in Art. 194(5). Wolfrum and Matz (2000), p. 451.
E. Scalieri