7.2 Coastal States’ Environmental Jurisdiction in the Law
of the Sea: Seeing Beyond Part XII UNCLOS
The study of the “environmental UNCLOS”
48 and the Convention’s impact on the
management and protection of the marine environment are not new.
49 However, few
works have been dedicated to compiling the bulk of environmental powers owned by
coastal states on and beneath the continental shelf. Apart from belonging to such
restricted group, this book also confronts some well-established premises in literature, according to which coastal states have a very limited environmental jurisdiction
on the continental shelf, especially so on the portion beyond 200 nm. As the analysis
below will show, such jurisdiction is rather considerable, and should be so, if the
international community is to stand a chance in coping with ocean’s deterioration
worldwide. The applicable law for the assessment of coastal states’ environmental
jurisdiction over continental shelf activities can be extracted from different sources.
First and foremost, it can be found in international customary law;
50 also, in a joint
reading of UNCLOS’ relevant provisions and the MEAs which eventually apply to
the marine realm, such as the CBD.
The premise underpinning this item is that, in the new law of the sea, coastal
states have been entrusted with legislative and enforcement powers on behalf of the
international community and charged with the challenging task of protecting and
preserving the marine environment. If glanced from this perspective, coastal states
may be considered to have been imposed colossal responsibilities, namely the
greater role in tackling transnationally-caused degradation of the seas, a degradation
which has reached levels that could not have been foreseen during UNCLOS
negotiations back in the 1970s. In a sense, coastal states have been attributed the
role of “keepers” of common, diffuse and collective concerns, particularly the
protection and preservation of the marine environment.
51
As the international community realized the magnitude of the problem described
as the “tragedy of the commons”, states took steps towards “privatizing” some of
those common goods provided by the ocean and conditioning their use to the respect
of internationally agreed principles and practices.
52 That change in approach, so as to
48 Expression employed by Blanco-Bazán (2003), p. 31.
49 For instance, see generally Bodansky (1991) and Molenaar (1998).
50 It has been claimed by none other than the United States government that most of UNCLOS
provisions concerning the protection of the marine environment reflect customary international law,
a claim far from unanimous. See United States, Restatement of Foreign Relations Law of the United
States, 1987, 102. This view is criticized by William Burke, to whom there was at the time no
evidence that some principles of UNCLOS reflected international custom. Burke (1989), p. 508.
51 Tassin (2013), p. 20.
52 An example of such principles is the rational and sustainable use of marine resources. Within
UNCLOS, the rational use of living resources can be found in provisions such as Arts. 62 and 64, on
the conservation of living resources, among others.
7.2 Coastal States’ Environmental Jurisdiction in the Law of the Sea: Seeing Beyond. . .
201
of the Sea: Seeing Beyond Part XII UNCLOS
The study of the “environmental UNCLOS”
48 and the Convention’s impact on the
management and protection of the marine environment are not new.
49 However, few
works have been dedicated to compiling the bulk of environmental powers owned by
coastal states on and beneath the continental shelf. Apart from belonging to such
restricted group, this book also confronts some well-established premises in literature, according to which coastal states have a very limited environmental jurisdiction
on the continental shelf, especially so on the portion beyond 200 nm. As the analysis
below will show, such jurisdiction is rather considerable, and should be so, if the
international community is to stand a chance in coping with ocean’s deterioration
worldwide. The applicable law for the assessment of coastal states’ environmental
jurisdiction over continental shelf activities can be extracted from different sources.
First and foremost, it can be found in international customary law;
50 also, in a joint
reading of UNCLOS’ relevant provisions and the MEAs which eventually apply to
the marine realm, such as the CBD.
The premise underpinning this item is that, in the new law of the sea, coastal
states have been entrusted with legislative and enforcement powers on behalf of the
international community and charged with the challenging task of protecting and
preserving the marine environment. If glanced from this perspective, coastal states
may be considered to have been imposed colossal responsibilities, namely the
greater role in tackling transnationally-caused degradation of the seas, a degradation
which has reached levels that could not have been foreseen during UNCLOS
negotiations back in the 1970s. In a sense, coastal states have been attributed the
role of “keepers” of common, diffuse and collective concerns, particularly the
protection and preservation of the marine environment.
51
As the international community realized the magnitude of the problem described
as the “tragedy of the commons”, states took steps towards “privatizing” some of
those common goods provided by the ocean and conditioning their use to the respect
of internationally agreed principles and practices.
52 That change in approach, so as to
48 Expression employed by Blanco-Bazán (2003), p. 31.
49 For instance, see generally Bodansky (1991) and Molenaar (1998).
50 It has been claimed by none other than the United States government that most of UNCLOS
provisions concerning the protection of the marine environment reflect customary international law,
a claim far from unanimous. See United States, Restatement of Foreign Relations Law of the United
States, 1987, 102. This view is criticized by William Burke, to whom there was at the time no
evidence that some principles of UNCLOS reflected international custom. Burke (1989), p. 508.
51 Tassin (2013), p. 20.
52 An example of such principles is the rational and sustainable use of marine resources. Within
UNCLOS, the rational use of living resources can be found in provisions such as Arts. 62 and 64, on
the conservation of living resources, among others.
7.2 Coastal States’ Environmental Jurisdiction in the Law of the Sea: Seeing Beyond. . .
201