6.4.3 Exercising Increased Powers to Protect the Marine
Environment
The exercise of environmental powers over maritime spaces under national jurisdiction for ecological purposes may consist of borderline cases, but such a practice is
not indefensible a priori. While it may amount to a behavior inconsistent with
UNCLOS, it may be sometimes justified in the coastal state’s quest for fulfilling
its right-duty to preserve and protect the marine environment.
144 Effectively, coastal
states are the mainly interested parties in maintain the health of adjacent seas to their
shores, and are in fact obliged to do so.
145 They are also the main interested parties in
securing peaceful uses of the waters off their littoral. Finally, coastal states, taken as
rational players, are not interested in disrupting merchant navigational freedom on
adjacent waters as the nefarious socioeconomic consequence of such disruption
would be felt immediately on the domestic level.
More than three decades after the signature of UNCLOS, it rests clear that the
principle of freedom of the seas is eroding. Nowadays, to postulate that freedoms of
the seas and correlated rights of other states are untouchable
146 is to annihilate
coastal states’ expectations of securing ecologically correct uses of the oceans and
to impede actions towards the protection of marine biodiversity.
147 UNCLOS itself
contains provisions that demand the reassessment of the theory of untouchability of
freedom of the seas, especially in light of renewed environmental sensitivities.
Besides, the righteous consequences of a jurisdictional crept for environmental
conservation purposes ought not to be neglected. Unilateral action, when based on
reasonable and convincing reasons, may trigger a virtuous process of developing
new and/or supplementing existing instruments which regulate a particular use of the
oceans. Hence, isolated action inconsistent with the Convention may be justified by
the objectives aimed therewith.
Regarding the conservation of living resources in the EEZ, unilateral Canadian
action in the Estai incident has virtues that ought not to be underestimated.
According to Ribeiro, such action denounced the artificiality of legal borders crafted
by the law of the sea, with regard to the dynamics of fish stocks and the reality of
specific ecosystems.
148 Coastal states have undertaken action to protect and conserve
fish stocks that may amount to a light jurisdictional crept. That action has triggered
the adoption of an Implementing Agreement to UNCLOS on fisheries—the 1995
UNFSA, whose provisions create an exception to the principle of exclusive
144 The expression “right-duty” is used by Marta Chantal Ribeiro, to whom the protection of the
marine environment is both a power and a duty granted to coastal states by several UNCLOS
provision, not only of Part XII (on the protection of the marine environment). See Ribeiro
(2013), p. 618.
145 Art. 192 UNCLOS.
146 See Lagoni (2003), p. 167.
147 Ribeiro (2013), p. 626.
148 Id. 636.
6.4 Coastal States’ Jurisdictional Expansion from an Environmental Perspective:. . .
171
Environment
The exercise of environmental powers over maritime spaces under national jurisdiction for ecological purposes may consist of borderline cases, but such a practice is
not indefensible a priori. While it may amount to a behavior inconsistent with
UNCLOS, it may be sometimes justified in the coastal state’s quest for fulfilling
its right-duty to preserve and protect the marine environment.
144 Effectively, coastal
states are the mainly interested parties in maintain the health of adjacent seas to their
shores, and are in fact obliged to do so.
145 They are also the main interested parties in
securing peaceful uses of the waters off their littoral. Finally, coastal states, taken as
rational players, are not interested in disrupting merchant navigational freedom on
adjacent waters as the nefarious socioeconomic consequence of such disruption
would be felt immediately on the domestic level.
More than three decades after the signature of UNCLOS, it rests clear that the
principle of freedom of the seas is eroding. Nowadays, to postulate that freedoms of
the seas and correlated rights of other states are untouchable
146 is to annihilate
coastal states’ expectations of securing ecologically correct uses of the oceans and
to impede actions towards the protection of marine biodiversity.
147 UNCLOS itself
contains provisions that demand the reassessment of the theory of untouchability of
freedom of the seas, especially in light of renewed environmental sensitivities.
Besides, the righteous consequences of a jurisdictional crept for environmental
conservation purposes ought not to be neglected. Unilateral action, when based on
reasonable and convincing reasons, may trigger a virtuous process of developing
new and/or supplementing existing instruments which regulate a particular use of the
oceans. Hence, isolated action inconsistent with the Convention may be justified by
the objectives aimed therewith.
Regarding the conservation of living resources in the EEZ, unilateral Canadian
action in the Estai incident has virtues that ought not to be underestimated.
According to Ribeiro, such action denounced the artificiality of legal borders crafted
by the law of the sea, with regard to the dynamics of fish stocks and the reality of
specific ecosystems.
148 Coastal states have undertaken action to protect and conserve
fish stocks that may amount to a light jurisdictional crept. That action has triggered
the adoption of an Implementing Agreement to UNCLOS on fisheries—the 1995
UNFSA, whose provisions create an exception to the principle of exclusive
144 The expression “right-duty” is used by Marta Chantal Ribeiro, to whom the protection of the
marine environment is both a power and a duty granted to coastal states by several UNCLOS
provision, not only of Part XII (on the protection of the marine environment). See Ribeiro
(2013), p. 618.
145 Art. 192 UNCLOS.
146 See Lagoni (2003), p. 167.
147 Ribeiro (2013), p. 626.
148 Id. 636.
6.4 Coastal States’ Jurisdictional Expansion from an Environmental Perspective:. . .
171