The underpinning philosophy inscribed into UNCLOS as to the protection of
marine living resources is one of facilitating access, while calling for respect to rates
of self-reproduction. In this sense, the international community agreed on concepts
such as “maximum sustainable yield”, “optimal utilization”, “sustainable use”,
“rational management”, among others, which have also been included into several
international environmental law instruments. In the maritime realm, UNCLOS
adopts a complex web of balancing provisions between exploitation and conservation, which nonetheless amounts to a logic of appropriation of the oceans. On the one
hand, it grants exclusive access to marine resources located up to 200 nm from
coastal baselines, while stipulating the need for coastal states to assess the maximal
catch levels of living resources; on the one hand, the Convention sustains the
freedom to fish in the high seas, while subjecting it to quotas and ratios to be
determined by the relevant regional fisheries organizations, the Regional Fisheries
Management Organizations (RFMOs).
39 As one can see, despite UNCLOS’
pioneering efforts towards conservation, it is not a purely environmental treaty,
nor was it intended to be.
That said, it is still a crucial instrument in assessing states’ powers and responsibilities in ocean-related matters, despite all criticism, reason for which the bulk of
the current examination relies on UNCLOS’ provisions on the marine environment.
The Convention dedicates an entire part with 46 provisions to elaborate on the
protection and preservation of the marine environment in terms of: cooperation;
technical assistance; systematic control and ecological assessment; international
rules and national legislation to prevent, reduce and control pollution in the marine
environment; implementation of standards; guarantees; and responsibility.
40 Cooperation is effected at the global and regional level by the states, either directly or
through international organizations, and comprise measures such as notification of
damages, development of combined research programs, exchange of information,
etc. States, either directly or through organizations, are required to provide scientific
and technical assistance to developing countries, apart from conducting systematic
monitoring and ecological assessment of the risks or impacts of pollution, publishing
reports and evaluating potential consequences of human activities in the marine
environment.
In sum, international law in general and the law of the sea in particular have
played a significant role in reaffirming mechanisms to protect nature, by turning the
marine pollution, due to the plethora of existing treaties prior to the adoption of the Convention); or,
when UNCLOS has substantive norms, they are too imprecise and ambiguous to be effective (as in
the case of provisions on the conservation of marine biodiversity and protection of habitats).
Churchill believes the one of the possible ways to address such flaws would be to adopt an
implementing agreement governing the protection of biodiversity in areas beyond national jurisdiction. See Churchill (2015), p. 30.
39 Art. 118 UNCLOS, on the cooperation of states in the conservation and management of living
resources.
40 Agustín Blanco-Bazán used the phrase “environmental UNCLOS”, to refer to the bulk of
ecology-oriented provisions within the Convention. See Blanco-Bazán (2003), p. 31.
198
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...
marine living resources is one of facilitating access, while calling for respect to rates
of self-reproduction. In this sense, the international community agreed on concepts
such as “maximum sustainable yield”, “optimal utilization”, “sustainable use”,
“rational management”, among others, which have also been included into several
international environmental law instruments. In the maritime realm, UNCLOS
adopts a complex web of balancing provisions between exploitation and conservation, which nonetheless amounts to a logic of appropriation of the oceans. On the one
hand, it grants exclusive access to marine resources located up to 200 nm from
coastal baselines, while stipulating the need for coastal states to assess the maximal
catch levels of living resources; on the one hand, the Convention sustains the
freedom to fish in the high seas, while subjecting it to quotas and ratios to be
determined by the relevant regional fisheries organizations, the Regional Fisheries
Management Organizations (RFMOs).
39 As one can see, despite UNCLOS’
pioneering efforts towards conservation, it is not a purely environmental treaty,
nor was it intended to be.
That said, it is still a crucial instrument in assessing states’ powers and responsibilities in ocean-related matters, despite all criticism, reason for which the bulk of
the current examination relies on UNCLOS’ provisions on the marine environment.
The Convention dedicates an entire part with 46 provisions to elaborate on the
protection and preservation of the marine environment in terms of: cooperation;
technical assistance; systematic control and ecological assessment; international
rules and national legislation to prevent, reduce and control pollution in the marine
environment; implementation of standards; guarantees; and responsibility.
40 Cooperation is effected at the global and regional level by the states, either directly or
through international organizations, and comprise measures such as notification of
damages, development of combined research programs, exchange of information,
etc. States, either directly or through organizations, are required to provide scientific
and technical assistance to developing countries, apart from conducting systematic
monitoring and ecological assessment of the risks or impacts of pollution, publishing
reports and evaluating potential consequences of human activities in the marine
environment.
In sum, international law in general and the law of the sea in particular have
played a significant role in reaffirming mechanisms to protect nature, by turning the
marine pollution, due to the plethora of existing treaties prior to the adoption of the Convention); or,
when UNCLOS has substantive norms, they are too imprecise and ambiguous to be effective (as in
the case of provisions on the conservation of marine biodiversity and protection of habitats).
Churchill believes the one of the possible ways to address such flaws would be to adopt an
implementing agreement governing the protection of biodiversity in areas beyond national jurisdiction. See Churchill (2015), p. 30.
39 Art. 118 UNCLOS, on the cooperation of states in the conservation and management of living
resources.
40 Agustín Blanco-Bazán used the phrase “environmental UNCLOS”, to refer to the bulk of
ecology-oriented provisions within the Convention. See Blanco-Bazán (2003), p. 31.
198
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...