relevance of the ocean adjacent to the country’s paradisiac shore.
17 Let us keep that
in mind, as the Brazilian policy and legal marine environmental framework stand on
the spotlight of this book’s last chapters.
The very possibility of coastal states having extended jurisdiction seawards, even
if limited, results from the traditional clash between freedom of the seas (mare
liberum) and territorial sovereignty (mare clausum) in the law of the sea. Yet,
more importantly, it seems that such dichotomy has been lately coexisting with
another rather recent one: the trichotomy between those principles and principles of
marine environmental protection, thus rendering it a de facto trichotomy. By the time
UNCLOS was signed, the wave of prise de conscience environmentale had marine
environmental concerns inchoately permeate the international agenda, and Parts V
and XII of the Convention, alongside its Preamble, undeniably reflect those concerns. In line with this new “conscience”, oceans are a common good that must be
cared for by governments, having such task been entrusted to governments by the
public.
18 Two chief ecological concerns of the time made their way into the wording
of the Treaty, namely over-fishing and marine pollution (from land, seabed, and
shipping activities).
Agreeing upon an internationally binding instrument punctuated with audacious,
environment-oriented norms was certainly a much important step to enhance the
overall ocean health. Drafters of the Convention believed that decisive action by
national states constituted a key part of the solution to environmental issues. Yet, for
environmental norms to be effectively implemented, two further steps ought to
supplement the entry into force of international rules, and those steps take place in
the national sphere: the exercise of prescriptive and, subsequently, enforcement
jurisdiction by states parties to the treaty.
19 In other words, the implementation of
environmental norms heavily depends on the states’ domestic action. That ascertainment implied a shift in the perception that the international community had on
coastal states: from enemies of the marine environment, to guardians of the common
goods; from part of the problem, to part of the solution, to put in a simplistic
manner.
20 Hence, alongside the “nationalization” of marine natural resources adjacent to the shore, coastal states were awarded a key role in advancing the environmental conservation of the world ocean.
21
Such jurisdictional expansion did not (and does not) go unquestioned. As early as
1956, Josef Kunz criticized the “doctrine and practice of the continental shelf”,
17 Carvalho (2005).
18 That theory is referred to as the “public stewardship of the oceans” and it claims that “the
government should exercise environmental and economic control over these with a broad sense
of responsibility toward all citizens and their long-term interests”. See Sand (2007), p. 521.
19 For more on the “three step approach” to environmental law implementation, see Hafner
(2006), p. 347.
20 Tassin (2013), p. 31.
21 As Garrett Hardin’s theory on the “tragedy of the commons” suggests, natural resources considered as global commons would not escape soon depletion, given the clear incentives to exploit
without caution. See Hardin (1968), p. 1243.
1.1 Factual Background and Theoretical Framework
5
17 Let us keep that
in mind, as the Brazilian policy and legal marine environmental framework stand on
the spotlight of this book’s last chapters.
The very possibility of coastal states having extended jurisdiction seawards, even
if limited, results from the traditional clash between freedom of the seas (mare
liberum) and territorial sovereignty (mare clausum) in the law of the sea. Yet,
more importantly, it seems that such dichotomy has been lately coexisting with
another rather recent one: the trichotomy between those principles and principles of
marine environmental protection, thus rendering it a de facto trichotomy. By the time
UNCLOS was signed, the wave of prise de conscience environmentale had marine
environmental concerns inchoately permeate the international agenda, and Parts V
and XII of the Convention, alongside its Preamble, undeniably reflect those concerns. In line with this new “conscience”, oceans are a common good that must be
cared for by governments, having such task been entrusted to governments by the
public.
18 Two chief ecological concerns of the time made their way into the wording
of the Treaty, namely over-fishing and marine pollution (from land, seabed, and
shipping activities).
Agreeing upon an internationally binding instrument punctuated with audacious,
environment-oriented norms was certainly a much important step to enhance the
overall ocean health. Drafters of the Convention believed that decisive action by
national states constituted a key part of the solution to environmental issues. Yet, for
environmental norms to be effectively implemented, two further steps ought to
supplement the entry into force of international rules, and those steps take place in
the national sphere: the exercise of prescriptive and, subsequently, enforcement
jurisdiction by states parties to the treaty.
19 In other words, the implementation of
environmental norms heavily depends on the states’ domestic action. That ascertainment implied a shift in the perception that the international community had on
coastal states: from enemies of the marine environment, to guardians of the common
goods; from part of the problem, to part of the solution, to put in a simplistic
manner.
20 Hence, alongside the “nationalization” of marine natural resources adjacent to the shore, coastal states were awarded a key role in advancing the environmental conservation of the world ocean.
21
Such jurisdictional expansion did not (and does not) go unquestioned. As early as
1956, Josef Kunz criticized the “doctrine and practice of the continental shelf”,
17 Carvalho (2005).
18 That theory is referred to as the “public stewardship of the oceans” and it claims that “the
government should exercise environmental and economic control over these with a broad sense
of responsibility toward all citizens and their long-term interests”. See Sand (2007), p. 521.
19 For more on the “three step approach” to environmental law implementation, see Hafner
(2006), p. 347.
20 Tassin (2013), p. 31.
21 As Garrett Hardin’s theory on the “tragedy of the commons” suggests, natural resources considered as global commons would not escape soon depletion, given the clear incentives to exploit
without caution. See Hardin (1968), p. 1243.
1.1 Factual Background and Theoretical Framework
5