and habitats of the outer shelf,
3 to give but two examples, UNCLOS’ insufficiency to
regulate continental shelf activities will become evident.
The Convention’s limitations are aggravated by the problem of uncertainties as to
the exact size of the outer continental shelf and, consequently, the extension of
coastal states’ powers and duties over the seafloor beyond 200 nm.
4 Besides the
physical uncertainty, the material uncertainty regarding coastal state powers over the
continental shelf following the final and binding delineation of outer limits may
trigger legal questions in the foreseeable future. Sure, the traditional maxim of the
“new” law of the sea prays that the farther away offshore, the lesser jurisdiction
coastal states will exercise. It is, nonetheless, paramount to assess the precise
environmental regulatory powers of coastal states over a maritime space as farther
offshore as the outer continental shelf, as well as the situations in which the state may
exercise increased jurisdiction, if the area is to be exploited with legal certainty and
some degree of predictability.
The focus of this section is to analyze coastal states’ environmental jurisdiction
regarding the specific maritime zone of the continental shelf, namely the parcel
beyond 200 nm. The focus of this work on the jurisdiction granted to states, and not
to other subjects of international law.
5 As any work in the field of legal sciences,
political views of the author influence the analysis of the work’s main arguments and
its findings. It does not mean that this work disconnects from law and dives into
political sciences, as it also does not mean that the arguments herein are equivalent to
political pamphleteering alien to legal methodology. These lines are not intended to
display political-environmental activism, but to provide an as equidistant as possible
analysis of the implications of continental shelf extension in terms of environmental
rights and duties to coastal states. Eventually, in the act of pondering principles and
values intrinsic to the new law of the sea
6 more weight will be given to contemporary
environmental considerations than to traditional principles which have governed the
ordre publique océanique.
Emphasis on environmental concerns are justified by the fact that pristine and
fragile deep-water species and habitats are found on outer continental shelves
worldwide, ecosystems whose dynamics and functioning are still poorly understood
3 Environmental legal scholars have identified the need to develop new legal principles (apart from
the common heritage of mankind and the notion of “common concern”), as well as to conclude
more bilateral, regional and global regulatory agreements that precisely define “conservation” and
prescribe appropriate measures. To date, there is no accepted international definition of the term.
See Birnie et al. (2009), p. 600.
4 For Clive Schofield (2011), p. 665, due to ongoing outer continental shelf submissions, “less than
half of the potential maritime boundaries around the world have been delimited”.
5 States are still the main actors in the international negotiation of environmental commitments, the
onus of protecting the oceans falling with special weight upon them. As put by Benedict SageFuller, “the onus to protect the oceans from degradation remains on States, acting individually and
collectively, on the basis of national jurisdiction. The limited effectiveness of marine environmental
law in preventing degradation is therefore imputable to States”. Sage-Fuller (2015), p. 310.
6 The technique of pondering values in legal hermeneutics has been explained by Ronald Dworkin
in his master-piece “Taking rights seriously”. See generally Dworkin (1978).
190
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...
3 to give but two examples, UNCLOS’ insufficiency to
regulate continental shelf activities will become evident.
The Convention’s limitations are aggravated by the problem of uncertainties as to
the exact size of the outer continental shelf and, consequently, the extension of
coastal states’ powers and duties over the seafloor beyond 200 nm.
4 Besides the
physical uncertainty, the material uncertainty regarding coastal state powers over the
continental shelf following the final and binding delineation of outer limits may
trigger legal questions in the foreseeable future. Sure, the traditional maxim of the
“new” law of the sea prays that the farther away offshore, the lesser jurisdiction
coastal states will exercise. It is, nonetheless, paramount to assess the precise
environmental regulatory powers of coastal states over a maritime space as farther
offshore as the outer continental shelf, as well as the situations in which the state may
exercise increased jurisdiction, if the area is to be exploited with legal certainty and
some degree of predictability.
The focus of this section is to analyze coastal states’ environmental jurisdiction
regarding the specific maritime zone of the continental shelf, namely the parcel
beyond 200 nm. The focus of this work on the jurisdiction granted to states, and not
to other subjects of international law.
5 As any work in the field of legal sciences,
political views of the author influence the analysis of the work’s main arguments and
its findings. It does not mean that this work disconnects from law and dives into
political sciences, as it also does not mean that the arguments herein are equivalent to
political pamphleteering alien to legal methodology. These lines are not intended to
display political-environmental activism, but to provide an as equidistant as possible
analysis of the implications of continental shelf extension in terms of environmental
rights and duties to coastal states. Eventually, in the act of pondering principles and
values intrinsic to the new law of the sea
6 more weight will be given to contemporary
environmental considerations than to traditional principles which have governed the
ordre publique océanique.
Emphasis on environmental concerns are justified by the fact that pristine and
fragile deep-water species and habitats are found on outer continental shelves
worldwide, ecosystems whose dynamics and functioning are still poorly understood
3 Environmental legal scholars have identified the need to develop new legal principles (apart from
the common heritage of mankind and the notion of “common concern”), as well as to conclude
more bilateral, regional and global regulatory agreements that precisely define “conservation” and
prescribe appropriate measures. To date, there is no accepted international definition of the term.
See Birnie et al. (2009), p. 600.
4 For Clive Schofield (2011), p. 665, due to ongoing outer continental shelf submissions, “less than
half of the potential maritime boundaries around the world have been delimited”.
5 States are still the main actors in the international negotiation of environmental commitments, the
onus of protecting the oceans falling with special weight upon them. As put by Benedict SageFuller, “the onus to protect the oceans from degradation remains on States, acting individually and
collectively, on the basis of national jurisdiction. The limited effectiveness of marine environmental
law in preventing degradation is therefore imputable to States”. Sage-Fuller (2015), p. 310.
6 The technique of pondering values in legal hermeneutics has been explained by Ronald Dworkin
in his master-piece “Taking rights seriously”. See generally Dworkin (1978).
190
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...