i.e. not just sovereign rights over the exploration and exploitation of natural
resources (an economically oriented and applied jurisdiction), but also rights to
enact and enforce environmental regulations concerning the use those resources.
In this sense, there should be mutual understanding on behalf of both naval
powers and coastal states, so as to assess on a casuistic basis the measures taken
by the latter to foster ecological protection and tackle marine environmental threats.
Coastal states may (and sometimes must, depending on UNCLOS provisions
supporting the action) adopt environmental measures through relevant agreements,
measures which are not deeply incompatible with freedom of the high seas enjoyed
by third states or parties.
173 Should the measures be incompatible with such freedoms, it will be the case to assess the context in which they are enacted, as in the case
of the array of national legislation adopted by European states affected by the Erika
and Prestige oil spills.
In order to prevent confrontation and unjustifiable violations of navigational
freedoms, clear communication, reasonableness and proportionality from the
involved parties must be. As pointed out by Ikeshima,
coastal states should refrain from stepping too far in search for environmental protection
(even if genuinely meant, and not a sort of security strategy dressed up as ecologically
friendly); and naval powers should accept the fact that the current era is shaped not
exclusively by military considerations anymore, but also by marine environmental concerns.
Although military issues remain “high politics”, they are not the only ones at the table and
must now share attention and prominence with ecological awareness.
174
The era in which military might and economic thrill alone mattered is over. For
some time now, institutionalists, environmentalists, idealists (you name it) have
faced the rather simplistic way of understanding the world, which set aside other
preoccupations as less relevant in relation to those two. Considerations of a socioenvironmental nature inspire international politics and international law more and
more, making it thus impossible for military interests to rule alone. For that reason,
the modern law of the sea has consecrated marine environmental concerns, sometimes in opposition to traditional freedoms.
Thirty-five years into the adoption of UNCLOS, pressing ecological threats to the
marine environment have been offering arguments to those voices calling for a
revision of the long-established idea of navigational freedom as an absolute and
unconditioned right. As some authors have righteously pointed out, the umbrella
agreed upon in 1982 is likely not be the same as the umbrella states are currently
willing to accept.
175 Biodiversity protection, for instance, is not within UNCLOS’
list of priorities, but this does not mean it cannot become an issue of primary concern
173 Ikeshima (2011), p. 25.
174 Id. 25.
175 Franckx (1998), p. 324. Despite not calling for a revision of freedom of the seas, Tullio Scovazzi
sees a “natural process of erosion” of that principle, sponsored in the twentieth century by the
creation of legal concepts in the law of the sea, such as EEZ and continental shelf. It is, however,
difficult to conceive such erosion as “natural”, but deeply conditioned by the actions and interests of
coastal states over the world’s oceans. See Scovazzi (2015), p. 63.
6.4 Coastal States’ Jurisdictional Expansion from an Environmental Perspective:. . .
179
resources (an economically oriented and applied jurisdiction), but also rights to
enact and enforce environmental regulations concerning the use those resources.
In this sense, there should be mutual understanding on behalf of both naval
powers and coastal states, so as to assess on a casuistic basis the measures taken
by the latter to foster ecological protection and tackle marine environmental threats.
Coastal states may (and sometimes must, depending on UNCLOS provisions
supporting the action) adopt environmental measures through relevant agreements,
measures which are not deeply incompatible with freedom of the high seas enjoyed
by third states or parties.
173 Should the measures be incompatible with such freedoms, it will be the case to assess the context in which they are enacted, as in the case
of the array of national legislation adopted by European states affected by the Erika
and Prestige oil spills.
In order to prevent confrontation and unjustifiable violations of navigational
freedoms, clear communication, reasonableness and proportionality from the
involved parties must be. As pointed out by Ikeshima,
coastal states should refrain from stepping too far in search for environmental protection
(even if genuinely meant, and not a sort of security strategy dressed up as ecologically
friendly); and naval powers should accept the fact that the current era is shaped not
exclusively by military considerations anymore, but also by marine environmental concerns.
Although military issues remain “high politics”, they are not the only ones at the table and
must now share attention and prominence with ecological awareness.
174
The era in which military might and economic thrill alone mattered is over. For
some time now, institutionalists, environmentalists, idealists (you name it) have
faced the rather simplistic way of understanding the world, which set aside other
preoccupations as less relevant in relation to those two. Considerations of a socioenvironmental nature inspire international politics and international law more and
more, making it thus impossible for military interests to rule alone. For that reason,
the modern law of the sea has consecrated marine environmental concerns, sometimes in opposition to traditional freedoms.
Thirty-five years into the adoption of UNCLOS, pressing ecological threats to the
marine environment have been offering arguments to those voices calling for a
revision of the long-established idea of navigational freedom as an absolute and
unconditioned right. As some authors have righteously pointed out, the umbrella
agreed upon in 1982 is likely not be the same as the umbrella states are currently
willing to accept.
175 Biodiversity protection, for instance, is not within UNCLOS’
list of priorities, but this does not mean it cannot become an issue of primary concern
173 Ikeshima (2011), p. 25.
174 Id. 25.
175 Franckx (1998), p. 324. Despite not calling for a revision of freedom of the seas, Tullio Scovazzi
sees a “natural process of erosion” of that principle, sponsored in the twentieth century by the
creation of legal concepts in the law of the sea, such as EEZ and continental shelf. It is, however,
difficult to conceive such erosion as “natural”, but deeply conditioned by the actions and interests of
coastal states over the world’s oceans. See Scovazzi (2015), p. 63.
6.4 Coastal States’ Jurisdictional Expansion from an Environmental Perspective:. . .
179