attempt to supplement the Convention whenever sensitive interests are not being
adequately protected by positive law. The international community, and scholars,
should listen to those attempts and ask whether they can be inserted in a bigger
picture, a bigger movement towards the strengthening of a particular set of provisions, such as the ecology-oriented ones, instead of simply dismissing them as
abusive. That would be an exercise of trying to grasp the complex relationship
between the political sphere and the legal universe that plays out in the law of the sea.
Freedoms of the seas are no longer absolute rights, and not all restrictions to those
freedoms are necessarily wicked.
180 In the case of fishing in the high seas, Art.
116 UNCLOS makes it clear that freedom to fish is conditioned, amongst others, to
the rights, duties and interests of coastal states.
181 Concerning freedom of navigation, coastal states have sought cooperation to adopt international rules and standards
governing vessel-source pollution and aiming at increasing the environmental quality of the world oceans, even if such measure may restrict navigational freedoms.
Examples of such efforts have been crystalized in instruments such as MARPOL, the
IMO’s resolutions, widespread designation of PSSAs. Combined with the declaration of MPAs in EEZs, and unilateral restrictions (France, Spain and Portugal after
the Prestige incident), those efforts may be welcomed as benefits to general ocean’s
health.
Besides, creeping on jurisdiction may be morally justified in some cases, especially if one take into account that the available tools for balancing the different uses
of the seas are not enough and especially not in favor of coastal states. In light of
current oceanic challenges, coastal states ought to have greater power to influence
the balance of opposing interests and uses of the waters adjacent to the shore. Maria
Gavouneli even mentions a “powerful urge of the coastal State to break the procedural constraints the world community has placed upon its actions”.
182 The answer
to those constraints remains unilateralism, namely in cases where consensual multilateral action or conventional amendments are expected to be costly and lengthy.
183
The current shape of jurisdictional regimes and zones, albeit relatively stable, is
not permanent and final. Nothing in the universe of law is final. The maritime zones
as they stand will certainly not last forever, but there does seem to be enough
evidence to assume that the current division of the oceans will last for a while,
despite the tension between the three core principles of the discipline.
184 When
reading some of the critiques which attempt to raise awareness to the destructive
power of jurisdictional claims to the architecture of UNCLOS, one may be
confronted with the feeling that the current ordre publique of the oceans would be
180 Freestone (2012), p. 200.
181 Art. 116 UNCLOS, on the right to fish in the high seas.
182 Gavouneli (2006), p. 82.
183 That is why, weeks following the Prestige disaster, the respective ministers of France and Spain
have agreed to unilaterally adopt a new (and much wider) interpretation of their rights and duties in
their respective EEZs.
184 The three cores are freedom of the seas, territorial sovereignty and common heritage of mankind.
6.4 Coastal States’ Jurisdictional Expansion from an Environmental Perspective:. . .
181
adequately protected by positive law. The international community, and scholars,
should listen to those attempts and ask whether they can be inserted in a bigger
picture, a bigger movement towards the strengthening of a particular set of provisions, such as the ecology-oriented ones, instead of simply dismissing them as
abusive. That would be an exercise of trying to grasp the complex relationship
between the political sphere and the legal universe that plays out in the law of the sea.
Freedoms of the seas are no longer absolute rights, and not all restrictions to those
freedoms are necessarily wicked.
180 In the case of fishing in the high seas, Art.
116 UNCLOS makes it clear that freedom to fish is conditioned, amongst others, to
the rights, duties and interests of coastal states.
181 Concerning freedom of navigation, coastal states have sought cooperation to adopt international rules and standards
governing vessel-source pollution and aiming at increasing the environmental quality of the world oceans, even if such measure may restrict navigational freedoms.
Examples of such efforts have been crystalized in instruments such as MARPOL, the
IMO’s resolutions, widespread designation of PSSAs. Combined with the declaration of MPAs in EEZs, and unilateral restrictions (France, Spain and Portugal after
the Prestige incident), those efforts may be welcomed as benefits to general ocean’s
health.
Besides, creeping on jurisdiction may be morally justified in some cases, especially if one take into account that the available tools for balancing the different uses
of the seas are not enough and especially not in favor of coastal states. In light of
current oceanic challenges, coastal states ought to have greater power to influence
the balance of opposing interests and uses of the waters adjacent to the shore. Maria
Gavouneli even mentions a “powerful urge of the coastal State to break the procedural constraints the world community has placed upon its actions”.
182 The answer
to those constraints remains unilateralism, namely in cases where consensual multilateral action or conventional amendments are expected to be costly and lengthy.
183
The current shape of jurisdictional regimes and zones, albeit relatively stable, is
not permanent and final. Nothing in the universe of law is final. The maritime zones
as they stand will certainly not last forever, but there does seem to be enough
evidence to assume that the current division of the oceans will last for a while,
despite the tension between the three core principles of the discipline.
184 When
reading some of the critiques which attempt to raise awareness to the destructive
power of jurisdictional claims to the architecture of UNCLOS, one may be
confronted with the feeling that the current ordre publique of the oceans would be
180 Freestone (2012), p. 200.
181 Art. 116 UNCLOS, on the right to fish in the high seas.
182 Gavouneli (2006), p. 82.
183 That is why, weeks following the Prestige disaster, the respective ministers of France and Spain
have agreed to unilaterally adopt a new (and much wider) interpretation of their rights and duties in
their respective EEZs.
184 The three cores are freedom of the seas, territorial sovereignty and common heritage of mankind.
6.4 Coastal States’ Jurisdictional Expansion from an Environmental Perspective:. . .
181