Marine environmental governance, here understood as international, regional and
national regulatory efforts aimed at protecting and managing the marine environment, has been a constant experimental process. States and civil society stakeholders
have gradually uncovered the mysteries surrounding the functioning of the marine
environment, even though much is still unknown. In this sense, marine governance
and regulation has been transitioning from an initial culture/belief of adopting
isolated protective measures directed at specific animals or habitats, towards an
integrated and holistic understanding of oceanic systems. Single-sector decisions
are gradually being replaced by multi-level cooperation between pertinent agencies,
with participation of affected stakeholders, as in the case of the IMO or the NEAFC
(North Atlantic Fisheries Commission).
Classic examples of the previous approach are the binding instruments aimed at
protecting marine mammals, such as seals and whales.
45 On the other side, an
embryonic illustration of a treaty with a predominant ecosystem approach is the
Convention on the Conservation of Antarctic Living Resources (CCAMLR), signed
in 1980. In addition to that, international commitment to implement an ecosystem
approach made its way to the CBD, at the COP 05,
46 as well as to regional
instruments, such as the Helsinki and OSPAR Conventions. Nowadays, the ecosystem approach may be linked to three main areas of ocean regulation, i.e. fisheries
management, pollution prevention and species and habitat protection, of which two
directly relate to the management of the continental shelf, core of this study. As such,
the ecosystem approach may be considered a brick in the construction of a legal
obligation to protect and preserve the marine environment, thus inserting values as
relevant as multi-sectoral cooperation and enhanced coordination between agencies
and stakeholders into the traditional, rather unstable edifice of ocean management.
Despite the binding character of the obligation to conserve and protect the marine
environment, its exact scope is still controversial in international law, particularly so
in the law of the sea. One of the main reasons for that is the fear that, relying on the
exercise of environmental jurisdiction, coastal states may foster excessive claims and
violate rights and freedoms of the high seas. As contended by Bernard Oxman, “even
though yielding to the territorial temptation with respect to a particular environmental problem may promise some short-term or tactical benefit, doing so may augment
the difficulties of achieving a desired level of international regulation on environmental problems in that area”.
47 For the reason listed above, it is necessary to discuss
the definition, content and scope of coastal state’s environmental jurisdiction, with a
particular look at UNCLOS and the CBD.
45 Remember the 1946 International Convention for the Regulation of Whaling, which set out catch
limits for commercial whaling.
46 CBD, Fifth Ordinary Meeting of the Conference of the Parties, COP 05, Nairobi, Decision V/6,
2000, on the ecosystem approach.
47 Oxman (2006), p. 845.
200
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...
national regulatory efforts aimed at protecting and managing the marine environment, has been a constant experimental process. States and civil society stakeholders
have gradually uncovered the mysteries surrounding the functioning of the marine
environment, even though much is still unknown. In this sense, marine governance
and regulation has been transitioning from an initial culture/belief of adopting
isolated protective measures directed at specific animals or habitats, towards an
integrated and holistic understanding of oceanic systems. Single-sector decisions
are gradually being replaced by multi-level cooperation between pertinent agencies,
with participation of affected stakeholders, as in the case of the IMO or the NEAFC
(North Atlantic Fisheries Commission).
Classic examples of the previous approach are the binding instruments aimed at
protecting marine mammals, such as seals and whales.
45 On the other side, an
embryonic illustration of a treaty with a predominant ecosystem approach is the
Convention on the Conservation of Antarctic Living Resources (CCAMLR), signed
in 1980. In addition to that, international commitment to implement an ecosystem
approach made its way to the CBD, at the COP 05,
46 as well as to regional
instruments, such as the Helsinki and OSPAR Conventions. Nowadays, the ecosystem approach may be linked to three main areas of ocean regulation, i.e. fisheries
management, pollution prevention and species and habitat protection, of which two
directly relate to the management of the continental shelf, core of this study. As such,
the ecosystem approach may be considered a brick in the construction of a legal
obligation to protect and preserve the marine environment, thus inserting values as
relevant as multi-sectoral cooperation and enhanced coordination between agencies
and stakeholders into the traditional, rather unstable edifice of ocean management.
Despite the binding character of the obligation to conserve and protect the marine
environment, its exact scope is still controversial in international law, particularly so
in the law of the sea. One of the main reasons for that is the fear that, relying on the
exercise of environmental jurisdiction, coastal states may foster excessive claims and
violate rights and freedoms of the high seas. As contended by Bernard Oxman, “even
though yielding to the territorial temptation with respect to a particular environmental problem may promise some short-term or tactical benefit, doing so may augment
the difficulties of achieving a desired level of international regulation on environmental problems in that area”.
47 For the reason listed above, it is necessary to discuss
the definition, content and scope of coastal state’s environmental jurisdiction, with a
particular look at UNCLOS and the CBD.
45 Remember the 1946 International Convention for the Regulation of Whaling, which set out catch
limits for commercial whaling.
46 CBD, Fifth Ordinary Meeting of the Conference of the Parties, COP 05, Nairobi, Decision V/6,
2000, on the ecosystem approach.
47 Oxman (2006), p. 845.
200
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...