tackle the “tragedy” at least in waters adjacent to the coast, is accurately described by
Nilufer Oral, to whom
[t]he common thread in extending the reach of national jurisdiction was to give coastal states
greater control to conserve and manage valuable resources of the seas and to protect the
marine environment from the increasing threats caused by human activities. [. . .] Reliance
on flag state jurisdiction to protect the marine environment of the high seas has not proven
effective (emphasis added).
53
Such a shift in environmental awareness has inspired the birth of not just
international obligations, but also rights to all states, in a sense that measures may
be taken within the domestic order limiting or conditioning the rights and freedoms
of other states. From that shift emerged the already cited Arts. 56 (1) (a), 61, 62,
192 and 194 UNCLOS, which have guaranteed all states rights and duties
umbilically connected to the protection and conservation of the marine environment.
From a combined reading of those provisions emerges an enlarged spectrum of
powers and duties falling upon states, to be exercised with due regard to the rights of
freedoms of other interested parties.
Should the interests of the international community as whole not matter in the
determination of coastal states’ and other states’ rights and duties in the EEZ, the
Convention would not have expressly cared for it in Art. 59. If jurisdictional
conflicts emerge, resolution should privilege a ponderation between the rights and
duties of coastal and other states and the interests of the international community at
large. Thus, in cases in which
a conflict arises between the interests of the coastal State and any other State or States, the
conflict should be resolved on the basis of equity and in the light of all the relevant
circumstances, taking into account the respective importance of the interests involved to
the parties as well as to the international community as a whole (emphasis added).
It seems reasonable to claim that no other consideration appeals to “the international community as a whole” more than the protection of the marine environment
and the well-functioning of ocean ecosystems, which enables life on the planet.
Other interests such as trade and communications sure matter, but ought to converge
to a use of the seas that is not harmful.
Methodologically, this section will propose and defend the concept of a “rightduty to manage the marine environment” as the ground for an interpretation of
UNCLOS jurisdictional provisions which favors enhanced coastal state environmental powers. Then, this work will analyze the main activities which may take
place on the continental shelf, namely beyond 200 nm, such as oil and gas exploitation, deep-sea mining, bottom-sea fishing, and marine scientific research, thus
assessing the most relevant categories of jurisdictional competences,
i.e. prescriptive and enforcement environmental jurisdiction. Finally, this section
will attempt at answering whether there are any implications of delineating the outer
53 Oral (2012), p. 403.
202
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...
Nilufer Oral, to whom
[t]he common thread in extending the reach of national jurisdiction was to give coastal states
greater control to conserve and manage valuable resources of the seas and to protect the
marine environment from the increasing threats caused by human activities. [. . .] Reliance
on flag state jurisdiction to protect the marine environment of the high seas has not proven
effective (emphasis added).
53
Such a shift in environmental awareness has inspired the birth of not just
international obligations, but also rights to all states, in a sense that measures may
be taken within the domestic order limiting or conditioning the rights and freedoms
of other states. From that shift emerged the already cited Arts. 56 (1) (a), 61, 62,
192 and 194 UNCLOS, which have guaranteed all states rights and duties
umbilically connected to the protection and conservation of the marine environment.
From a combined reading of those provisions emerges an enlarged spectrum of
powers and duties falling upon states, to be exercised with due regard to the rights of
freedoms of other interested parties.
Should the interests of the international community as whole not matter in the
determination of coastal states’ and other states’ rights and duties in the EEZ, the
Convention would not have expressly cared for it in Art. 59. If jurisdictional
conflicts emerge, resolution should privilege a ponderation between the rights and
duties of coastal and other states and the interests of the international community at
large. Thus, in cases in which
a conflict arises between the interests of the coastal State and any other State or States, the
conflict should be resolved on the basis of equity and in the light of all the relevant
circumstances, taking into account the respective importance of the interests involved to
the parties as well as to the international community as a whole (emphasis added).
It seems reasonable to claim that no other consideration appeals to “the international community as a whole” more than the protection of the marine environment
and the well-functioning of ocean ecosystems, which enables life on the planet.
Other interests such as trade and communications sure matter, but ought to converge
to a use of the seas that is not harmful.
Methodologically, this section will propose and defend the concept of a “rightduty to manage the marine environment” as the ground for an interpretation of
UNCLOS jurisdictional provisions which favors enhanced coastal state environmental powers. Then, this work will analyze the main activities which may take
place on the continental shelf, namely beyond 200 nm, such as oil and gas exploitation, deep-sea mining, bottom-sea fishing, and marine scientific research, thus
assessing the most relevant categories of jurisdictional competences,
i.e. prescriptive and enforcement environmental jurisdiction. Finally, this section
will attempt at answering whether there are any implications of delineating the outer
53 Oral (2012), p. 403.
202
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...