coastal states which unilaterally assert the right to deny passage to vessels carrying
ultra-hazardous cargoes, not only through their territorial sea, but also EEZ.
159 The
environmental security jurisdiction is heavily grounded on a greatly sensitive interest
of coastal states (safety from ecological dangers), what makes it unsurprising that
approximately one third of the international community attempts to impose restrictions to navigation based on ecological security interests.
160
This sort of jurisdictional assertion, known as environmental security jurisdiction, has come to stay. Coastal states will increasingly face the dilemma between
protecting marine environmental health off their shores and securing international
shipping and trade. That is, enacting environmentally protective legislation and
taking enforcement measures in order to minimize risks and dangers of marine
pollution that may occur from vessels and installations (foreign and national)
which do not match the highest available environmental standards—both domestically and internationally, and looking for alternatives to the plain restriction of
navigation rights in their EEZs and continental shelves. However, the legal possibility to adopt restrictive measures aimed at preserving a particularly sensitive area
needs to be “on the table”, in case the coastal state can make a decent case, based on
justified restrictions to the rights of other states. The exercise of environmental
(security) jurisdiction should not be considered a priori nefarious to the legal order
of the oceans, merely because it may interfere with the overriding freedom to
navigate. To the contrary, coastal states are to be given regulatory maneuver room
for uses of the waters adjacent to their littoral, for security and ecological purposes.
6.4.4 Reducing Tensions Between Military Security Interests
and the Protection of the Marine Environment
Historically, the law of the sea has been shaped by the fundamental tension between
freedom to navigate and sovereignty claims, in which naval powers, while prioritizing mobility and accessibility, opposed any move by coastal states to exercise
jurisdiction over larger portions of the oceans. From the perspective of a state
equipped with powerful military and/or merchant fleets, waters untouched by any
sort of national jurisdiction should optimally be as large as possible. It has been so
for centuries, until the adoption of the Montego Bay Convention, when the already
negotiated way. In that case, it is uncontroversial in international law literature burden of proof lies
with the state that claims to have jurisdiction, not with the ones that object. These questions related
to the extension of coastal state’s environmental jurisdiction and issues arising therefrom are the at
the core of Chap. 7. See Staker (2014), p. 315.
159 Kaye contests that attempts aimed at expanding jurisdiction on the EEZ are not expressly backed
by UNCLOS, which does not anticipate any restriction on navigation in the EEZ based upon the
nature of the cargo. See generally Kaye (2006).
160 From South America alone, one can identify Argentina, Brazil, Chile, Colombia, Peru and
Venezuela. A table with the precise states can be found at Kaye (2006), p. 362.
174
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
ultra-hazardous cargoes, not only through their territorial sea, but also EEZ.
159 The
environmental security jurisdiction is heavily grounded on a greatly sensitive interest
of coastal states (safety from ecological dangers), what makes it unsurprising that
approximately one third of the international community attempts to impose restrictions to navigation based on ecological security interests.
160
This sort of jurisdictional assertion, known as environmental security jurisdiction, has come to stay. Coastal states will increasingly face the dilemma between
protecting marine environmental health off their shores and securing international
shipping and trade. That is, enacting environmentally protective legislation and
taking enforcement measures in order to minimize risks and dangers of marine
pollution that may occur from vessels and installations (foreign and national)
which do not match the highest available environmental standards—both domestically and internationally, and looking for alternatives to the plain restriction of
navigation rights in their EEZs and continental shelves. However, the legal possibility to adopt restrictive measures aimed at preserving a particularly sensitive area
needs to be “on the table”, in case the coastal state can make a decent case, based on
justified restrictions to the rights of other states. The exercise of environmental
(security) jurisdiction should not be considered a priori nefarious to the legal order
of the oceans, merely because it may interfere with the overriding freedom to
navigate. To the contrary, coastal states are to be given regulatory maneuver room
for uses of the waters adjacent to their littoral, for security and ecological purposes.
6.4.4 Reducing Tensions Between Military Security Interests
and the Protection of the Marine Environment
Historically, the law of the sea has been shaped by the fundamental tension between
freedom to navigate and sovereignty claims, in which naval powers, while prioritizing mobility and accessibility, opposed any move by coastal states to exercise
jurisdiction over larger portions of the oceans. From the perspective of a state
equipped with powerful military and/or merchant fleets, waters untouched by any
sort of national jurisdiction should optimally be as large as possible. It has been so
for centuries, until the adoption of the Montego Bay Convention, when the already
negotiated way. In that case, it is uncontroversial in international law literature burden of proof lies
with the state that claims to have jurisdiction, not with the ones that object. These questions related
to the extension of coastal state’s environmental jurisdiction and issues arising therefrom are the at
the core of Chap. 7. See Staker (2014), p. 315.
159 Kaye contests that attempts aimed at expanding jurisdiction on the EEZ are not expressly backed
by UNCLOS, which does not anticipate any restriction on navigation in the EEZ based upon the
nature of the cargo. See generally Kaye (2006).
160 From South America alone, one can identify Argentina, Brazil, Chile, Colombia, Peru and
Venezuela. A table with the precise states can be found at Kaye (2006), p. 362.
174
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .