7.2.2 Environmental Jurisdiction on the Continental Shelf
UNCLOS has codified environmental concerns at an early stage of international
discussions on ecological protection, in moment prior even to the dissemination of
the idea of sustainable development. While the concept of sustainable development
was brought to life in 1987 by the Brundtland Report, a nonbinding instrument,
65
already in 1982, 5 years earlier, Part XII of the Convention pioneered an attempt to
offer a global response to the increasingly perceived problem of marine pollution,
thus turning some of the soft law environmental provisions of the time into binding
norms.
66
Hence, the Convention has built upon existing soft norms and contributed to the
consolidation of a body of international environmental legislation, in a dynamics in
which both regimes (of sea and environmental law) permanently inform each other.
In the one direction, early environmental preoccupations with pollution and deep-sea
mining had shaped the law of the sea even before the kickstart of UNCLOS
negotiations.
67 In the other, UNCLOS principles form a concrete part of international environmental law, to the point of references to an “environmental law of the
sea”
68 or “marine environmental law”
69 being summoned rather frequently in the
specialized literature. Inter-regime porosity is undeniable and ought to be at the core
of current-day interpretations of law of the sea provisions.
The attribution of environmental rights and obligations to coastal, port, landlocked and flag states conforms, thus, a part of UNCLOS. In so doing, the Treaty is
informed by the quest of striking the famously recognized balance between different
uses of the world oceans and conflicting views as to the allocation of jurisdiction on
ocean spaces. In reality, when dealing with the distribution of “maritime jurisdiction”, UNCLOS has struck two key balances for a peaceful and sound use of the
oceans: on the one hand, the equilibrium between coastal states’ sovereign rights and
freedoms of the seas; on the other, the balance between safeguarding the mare
liberum principle while advancing marine environmental protection initiatives.
70
As it will be analyzed below, striking balances is easier said than done, as environmental concerns may serve as excuses for unduly interferences on traditional rights
and freedoms of other states, while international skepticism towards the environmental motivation of domestic measures may deter coastal states from embracing
higher environmental standards within their waters.
65 Report of the World Commission on Environment and Development: Our Common Future, 1987.
66 McConnell and Gold (1991), p. 83.
67 Remember the UN Resolution 2749 (XXV), on the Declaration of Principles Governing the
Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction,
A/RES/25/2749, 1970.
68 McConnell and Gold (1991), p. 99.
69 See generally Kirchner (2003).
70 See generally Nelson (2010).
7.2 Coastal States’ Environmental Jurisdiction in the Law of the Sea: Seeing Beyond. . .
205
UNCLOS has codified environmental concerns at an early stage of international
discussions on ecological protection, in moment prior even to the dissemination of
the idea of sustainable development. While the concept of sustainable development
was brought to life in 1987 by the Brundtland Report, a nonbinding instrument,
65
already in 1982, 5 years earlier, Part XII of the Convention pioneered an attempt to
offer a global response to the increasingly perceived problem of marine pollution,
thus turning some of the soft law environmental provisions of the time into binding
norms.
66
Hence, the Convention has built upon existing soft norms and contributed to the
consolidation of a body of international environmental legislation, in a dynamics in
which both regimes (of sea and environmental law) permanently inform each other.
In the one direction, early environmental preoccupations with pollution and deep-sea
mining had shaped the law of the sea even before the kickstart of UNCLOS
negotiations.
67 In the other, UNCLOS principles form a concrete part of international environmental law, to the point of references to an “environmental law of the
sea”
68 or “marine environmental law”
69 being summoned rather frequently in the
specialized literature. Inter-regime porosity is undeniable and ought to be at the core
of current-day interpretations of law of the sea provisions.
The attribution of environmental rights and obligations to coastal, port, landlocked and flag states conforms, thus, a part of UNCLOS. In so doing, the Treaty is
informed by the quest of striking the famously recognized balance between different
uses of the world oceans and conflicting views as to the allocation of jurisdiction on
ocean spaces. In reality, when dealing with the distribution of “maritime jurisdiction”, UNCLOS has struck two key balances for a peaceful and sound use of the
oceans: on the one hand, the equilibrium between coastal states’ sovereign rights and
freedoms of the seas; on the other, the balance between safeguarding the mare
liberum principle while advancing marine environmental protection initiatives.
70
As it will be analyzed below, striking balances is easier said than done, as environmental concerns may serve as excuses for unduly interferences on traditional rights
and freedoms of other states, while international skepticism towards the environmental motivation of domestic measures may deter coastal states from embracing
higher environmental standards within their waters.
65 Report of the World Commission on Environment and Development: Our Common Future, 1987.
66 McConnell and Gold (1991), p. 83.
67 Remember the UN Resolution 2749 (XXV), on the Declaration of Principles Governing the
Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction,
A/RES/25/2749, 1970.
68 McConnell and Gold (1991), p. 99.
69 See generally Kirchner (2003).
70 See generally Nelson (2010).
7.2 Coastal States’ Environmental Jurisdiction in the Law of the Sea: Seeing Beyond. . .
205