abhorring the “triumphant upsurge of national sovereignty” against the longestablished customary principle of freedom of the seas.
22 Similarly, Richard Bilder
claimed that “any coastal state extension of jurisdiction into the contiguous high
seas, even if functionally limited, tends over time to expand to include more claims,
until it becomes the functional equivalent of a territorial sea, in substance if not in
name”.
23 More recently, and in the very same line, Bernard Oxman has famously
sounded the sirens on the “territorial temptation” of states,
24 in order to raise the
international community’s awareness to an alleged insatiable hunger of coastal states
for increased jurisdiction seaward. That extended jurisdiction, so James Kraska, can
be cloaked as environment-based measures, which admittedly enjoy more persuasive justification power in the eyes of the international community.
25
In an age when environmental concerns occupy a more relevant place than ever in
international rule- and decision-making, it is important to permanently reshape the
balance between freedom of the seas, coastal state jurisdiction over the seabed, and
those principles of environmental protection of marine areas. In light of the expansion of coastal states’ sovereign rights to explore and exploit, it is relevant to assess
whether that expansion was accompanied by greater powers to legislate and enforce
locally designed environmental regulations on one specific part of the ocean: the
outer continental shelf. In an area that embodies the jurisdictional ambitions of
coastal states, such as the outer continental shelf, it is pressing to define the precise
environmental regime applicable therein.
1.2 Subject Matter
In light of the factual background introduced above, it should rest clear that this work
focuses on the environmental jurisdiction of coastal states on the continental shelf.
As such, it is narrowed down to the study of the relationship between the sovereign
rights to explore and exploit the resources of the continental shelf within and beyond
200 nm, and the obligations to protect and preserve the marine environment of the
seabed under national jurisdiction.
26 Those rights are confronted with environmental
considerations and obligations that fall upon coastal states when conducting activities in the depths.
Together with the Preamble, UNCLOS’ Parts V (on the EEZ), VI (on the
continental shelf) and XII (on the marine environment) provide a general
22 Kunz (1958), p. 828.
23 Bilder (1973), p. 104.
24 In his critique, Oxman labels territorial temptation as “a unilateralist impulse often born of narrow
agendas, impatience, frustration or politic and bureaucratic ambitions”. This concept was inspired
on Jean-François Revel’s expression “totalitarian temptation” (1978). See Oxman (2006), p. 24.
25 Kraska (2011), pp. 1–9.
26 Arts. 76, 77 and 78 of Part VI, UNCLOS.
6
1 Introduction: Setting the Stage
22 Similarly, Richard Bilder
claimed that “any coastal state extension of jurisdiction into the contiguous high
seas, even if functionally limited, tends over time to expand to include more claims,
until it becomes the functional equivalent of a territorial sea, in substance if not in
name”.
23 More recently, and in the very same line, Bernard Oxman has famously
sounded the sirens on the “territorial temptation” of states,
24 in order to raise the
international community’s awareness to an alleged insatiable hunger of coastal states
for increased jurisdiction seaward. That extended jurisdiction, so James Kraska, can
be cloaked as environment-based measures, which admittedly enjoy more persuasive justification power in the eyes of the international community.
25
In an age when environmental concerns occupy a more relevant place than ever in
international rule- and decision-making, it is important to permanently reshape the
balance between freedom of the seas, coastal state jurisdiction over the seabed, and
those principles of environmental protection of marine areas. In light of the expansion of coastal states’ sovereign rights to explore and exploit, it is relevant to assess
whether that expansion was accompanied by greater powers to legislate and enforce
locally designed environmental regulations on one specific part of the ocean: the
outer continental shelf. In an area that embodies the jurisdictional ambitions of
coastal states, such as the outer continental shelf, it is pressing to define the precise
environmental regime applicable therein.
1.2 Subject Matter
In light of the factual background introduced above, it should rest clear that this work
focuses on the environmental jurisdiction of coastal states on the continental shelf.
As such, it is narrowed down to the study of the relationship between the sovereign
rights to explore and exploit the resources of the continental shelf within and beyond
200 nm, and the obligations to protect and preserve the marine environment of the
seabed under national jurisdiction.
26 Those rights are confronted with environmental
considerations and obligations that fall upon coastal states when conducting activities in the depths.
Together with the Preamble, UNCLOS’ Parts V (on the EEZ), VI (on the
continental shelf) and XII (on the marine environment) provide a general
22 Kunz (1958), p. 828.
23 Bilder (1973), p. 104.
24 In his critique, Oxman labels territorial temptation as “a unilateralist impulse often born of narrow
agendas, impatience, frustration or politic and bureaucratic ambitions”. This concept was inspired
on Jean-François Revel’s expression “totalitarian temptation” (1978). See Oxman (2006), p. 24.
25 Kraska (2011), pp. 1–9.
26 Arts. 76, 77 and 78 of Part VI, UNCLOS.
6
1 Introduction: Setting the Stage