Chapter 6
Creeping Jurisdiction in the Law of the Sea:
Threat to Navigational Freedoms or Stand
Against “Spoliative Jurisdiction”?
Despite increasing environmental awareness regarding ocean affairs, the law of the
sea is comprised of rules which embody the attempt to prioritize economic interests
of states, in vague and general terms.
1 Prevailing rule is “abstention from
unjustifiable interferences” on the rights of other states, the underpinning philosophy
of freedom of the seas. In this context, this book dedicates an item to discuss the
long-established customary and treaty norms which praise navigational freedoms as
unshakable, fully aware that the affirmation of coastal states’ right to protect the
marine environment in areas within national jurisdiction (to the detriment of freedom
of the seas) is likely to face some degree of rejection by parcels of the international
community. Should the book provoke questions marks on the current balance of
rights and duties between coastal and other states on the continental shelf, it will
have achieved its intention.
However, this work is not ignorant of a need to guarantee a more realistic and
effective protection of the environment, not the ideal one. The regime of the
continental shelf within and particularly beyond 200 nm must have in mind the
contingencies of current-day law of the sea. One should, thus, foster the creative and
innovative use of UNCLOS and environmental legal treaties and soft law instruments, with the objective of strengthening the possibilities of coastal state action in
face of traditional freedoms of the seas on the continental shelf, always bearing in
mind UNCLOS Art. 78 (1) and (2), on the obligation of due regard to the rights and
freedoms of other states. This is an exercise of attempting at harmonizing contrary
1 The preeminence of the economic rationale can be observed in Arts. 56 (2) and 58 (1) UNCLOS,
on the economic facet of the EEZ; Art. 78 (1), on the preservation of high seas freedoms above the
continental shelf, seen as indispensable to international commerce; and Art. 194 (4), on coastal
states’ duty to refrain from unjustifiable interference on activities of other states when taking
measures to prevent, reduce and control pollution of the marine environment.
© The Editor(s) (if applicable) and The Author(s), under exclusive licence to
Springer Nature Switzerland AG 2020
V. Alencar Mayer Feitosa Ventura, Environmental Jurisdiction in the Law of the Sea,
https://doi.org/10.1007/978-3-030-50543-1_6
141
Creeping Jurisdiction in the Law of the Sea:
Threat to Navigational Freedoms or Stand
Against “Spoliative Jurisdiction”?
Despite increasing environmental awareness regarding ocean affairs, the law of the
sea is comprised of rules which embody the attempt to prioritize economic interests
of states, in vague and general terms.
1 Prevailing rule is “abstention from
unjustifiable interferences” on the rights of other states, the underpinning philosophy
of freedom of the seas. In this context, this book dedicates an item to discuss the
long-established customary and treaty norms which praise navigational freedoms as
unshakable, fully aware that the affirmation of coastal states’ right to protect the
marine environment in areas within national jurisdiction (to the detriment of freedom
of the seas) is likely to face some degree of rejection by parcels of the international
community. Should the book provoke questions marks on the current balance of
rights and duties between coastal and other states on the continental shelf, it will
have achieved its intention.
However, this work is not ignorant of a need to guarantee a more realistic and
effective protection of the environment, not the ideal one. The regime of the
continental shelf within and particularly beyond 200 nm must have in mind the
contingencies of current-day law of the sea. One should, thus, foster the creative and
innovative use of UNCLOS and environmental legal treaties and soft law instruments, with the objective of strengthening the possibilities of coastal state action in
face of traditional freedoms of the seas on the continental shelf, always bearing in
mind UNCLOS Art. 78 (1) and (2), on the obligation of due regard to the rights and
freedoms of other states. This is an exercise of attempting at harmonizing contrary
1 The preeminence of the economic rationale can be observed in Arts. 56 (2) and 58 (1) UNCLOS,
on the economic facet of the EEZ; Art. 78 (1), on the preservation of high seas freedoms above the
continental shelf, seen as indispensable to international commerce; and Art. 194 (4), on coastal
states’ duty to refrain from unjustifiable interference on activities of other states when taking
measures to prevent, reduce and control pollution of the marine environment.
© The Editor(s) (if applicable) and The Author(s), under exclusive licence to
Springer Nature Switzerland AG 2020
V. Alencar Mayer Feitosa Ventura, Environmental Jurisdiction in the Law of the Sea,
https://doi.org/10.1007/978-3-030-50543-1_6
141