The interrelation between ocean and environmental law is particularly noted with
regard to the continental shelf, perhaps due to recent scientific interest on the
seafloor, thereby dismissing the traditional view of the continental shelf as a place
devoid of marine biodiversity and, therefore, of environmental concern. In fact, the
submersed areas adjacent to the coast have been depicted as “the most geologically
diverse component of the seafloor, providing diverse habitats for living resources”,
71
an affirmation particularly true with regard to the continental shelf beyond 200 nm,
whose biological resources include rare and understudied species, such as hydrothermal vents and cold seeps.
72 Biodiversity riches and the “perceived value of the
resources of the continental shelf”
73 are one of the coastal states’ main reasons for
seeking the extension of their continental shelves and regulating activities taking
place thereon—together with the projection of power seawards, which an outer
continental shelf delineation entails.
As mentioned supra, it would be illogical to pursue an all-embracing regulation of
continental shelf activities exclusively within the realm of the law of the sea, reason
for which the main legal text inspiring this analysis is UNCLOS, as complemented
by other international environmental treaties.
74 The legal framework informing
environmental jurisdiction on the continental shelf must rely, at the very least, on:
UNCLOS Parts V, VI, XI, XII and XIII;
75 MEAs, in particular the CBD and
obligations to take measures to protect marine biodiversity;
76 customary international law, namely the obligation not to cause transboundary harm, the obligation to
act with precaution, the obligation to exercise due diligence, the obligation to
conduct Environmental Impact Assessments (EIA); and, finally, nonbinding instruments, such as, inter alia, resolutions, recommendations, guidelines, and codes of
conduct by international organizations.
In that context, UNCLOS’ edifice on continental shelf environmental jurisdiction
rests on two main philosophies. Firstly, that coastal states shall not have environmental competencies that unjustifiably violate the freedom of navigation of other
states. Secondly, the “environmental jurisdiction forms an inherent part of the
control over natural resources”,
77 a control that was entrusted to coastal states
after decades of spoliation overlooked by the traditional law of the sea. In other
words, the power to take measures aimed at protecting the marine environment is a
71 Ramirez-Llodra et al. (2010), p. 2857.
72 Some organisms found in hydrothermal vent sites have a high degree on endemism and cannot be
found anywhere else.
73 Mossop (2016), p. 180.
74 For the relation between the CBD and UNCLOS, refer to Art. 22 CBD, and Art. 311 UNCLOS.
See Birnie et al. (2009), p. 750.
75 In UNCLOS’ scope, the most pertinent provisions for the debate stem from Part V, on the EEZ,
which informs specific provisions on the continental shelf as well; Part VI, on the continental shelf;
Part XII, on the protection and preservation of the marine environment; and Part XIII, on marine
scientific research.
76 Arts. 5 and 8, CBD.
77 Kwiatkowska (1991), p. 160.
206
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...
regard to the continental shelf, perhaps due to recent scientific interest on the
seafloor, thereby dismissing the traditional view of the continental shelf as a place
devoid of marine biodiversity and, therefore, of environmental concern. In fact, the
submersed areas adjacent to the coast have been depicted as “the most geologically
diverse component of the seafloor, providing diverse habitats for living resources”,
71
an affirmation particularly true with regard to the continental shelf beyond 200 nm,
whose biological resources include rare and understudied species, such as hydrothermal vents and cold seeps.
72 Biodiversity riches and the “perceived value of the
resources of the continental shelf”
73 are one of the coastal states’ main reasons for
seeking the extension of their continental shelves and regulating activities taking
place thereon—together with the projection of power seawards, which an outer
continental shelf delineation entails.
As mentioned supra, it would be illogical to pursue an all-embracing regulation of
continental shelf activities exclusively within the realm of the law of the sea, reason
for which the main legal text inspiring this analysis is UNCLOS, as complemented
by other international environmental treaties.
74 The legal framework informing
environmental jurisdiction on the continental shelf must rely, at the very least, on:
UNCLOS Parts V, VI, XI, XII and XIII;
75 MEAs, in particular the CBD and
obligations to take measures to protect marine biodiversity;
76 customary international law, namely the obligation not to cause transboundary harm, the obligation to
act with precaution, the obligation to exercise due diligence, the obligation to
conduct Environmental Impact Assessments (EIA); and, finally, nonbinding instruments, such as, inter alia, resolutions, recommendations, guidelines, and codes of
conduct by international organizations.
In that context, UNCLOS’ edifice on continental shelf environmental jurisdiction
rests on two main philosophies. Firstly, that coastal states shall not have environmental competencies that unjustifiably violate the freedom of navigation of other
states. Secondly, the “environmental jurisdiction forms an inherent part of the
control over natural resources”,
77 a control that was entrusted to coastal states
after decades of spoliation overlooked by the traditional law of the sea. In other
words, the power to take measures aimed at protecting the marine environment is a
71 Ramirez-Llodra et al. (2010), p. 2857.
72 Some organisms found in hydrothermal vent sites have a high degree on endemism and cannot be
found anywhere else.
73 Mossop (2016), p. 180.
74 For the relation between the CBD and UNCLOS, refer to Art. 22 CBD, and Art. 311 UNCLOS.
See Birnie et al. (2009), p. 750.
75 In UNCLOS’ scope, the most pertinent provisions for the debate stem from Part V, on the EEZ,
which informs specific provisions on the continental shelf as well; Part VI, on the continental shelf;
Part XII, on the protection and preservation of the marine environment; and Part XIII, on marine
scientific research.
76 Arts. 5 and 8, CBD.
77 Kwiatkowska (1991), p. 160.
206
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...