corollary of natural resources’ control, which undeniably recognized by international
scholarship. Therefore, if a state has control over natural resources, it has environmental jurisdiction (rights and duties) to manage those resources in the least
degrading way to the marine environment.
On the first assertion, knowing that coastal states may feel tempted to camouflage
excessive jurisdictional claims as environmentally sound practices,
78 the drafters of
the Convention codified the traditional “gradual approach” to coastal state jurisdiction seaward, or “progressive jurisdiction”, according to which the intensity of rights
and duties over adjacent areas to the shore is not uniform and will be directly
proportional to the proximity to the shore—the closer, the stronger.
79 This premise
has rendered coastal states’ powers beyond the territorial sea traditionally limited,
80
as on the continental shelf, where coastal state jurisdiction is less than its authority
over internal waters and the territorial sea.
Directly embedded into such a gradual approach are concerns by naval and
maritime powers of losing navigational and other high seas freedoms to special
interests of coastal and port states.
81 Of particular relevance to the debate between
increased environmental protection and freedom of navigation are the so-called
maritime and military security concerns. Policy-makers and strategists of maritime
states consider that an enhanced environmental jurisdiction could serve as an alibi
for curtailing navigational rights of both military and merchant fleets, thereby
leaving threats such as piracy, terrorism, human and drug-trafficking by sea unaccounted for. The fundamental tension between military security interests and environmental concerns will be analyzed in a specific section below, so as to tackle the
traditional view of maritime security considerations as justifying restrained environmental powers by coastal states.
The second premise, that marine resource control is the cradle of coastal state
environmental jurisdiction on the continental shelf, the reason why coastal states are
entitled environmental powers in the place, will also be scrutinized in detail, as a
fundamental step in assessing the nature and scope of those powers. In fact, it flows
logically that marine resources and life are part of the environment—a key ITLOS
78 Maria Gavouneli considers that “the affirmation of State power within the prescribed limits does
not preclude further, often unilateral, attempts not to affirm its already established jurisdiction but
rather to exclude other users of the seas”. See Gavouneli (2014), p. 14.
79 Remember the principle according to which coastal states’ powers over maritime ones derives
from sovereignty over the land. “The land is the legal source of the power which a State may
exercise over territorial extensions to seaward”. See North Sea Continental Shelf cases (Federal
Republic of Germany v Denmark, Federal Republic of Germany v the Netherlands), para 96.
80 In this sense, this book shares the opinion of Bodansky (1991), p. 755.
81 James Kraska claims that the liberal ocean order, as he calls it, “faces widespread acceptance as
well as concerted challenge and preserving broad and permissive understanding of high seas
freedoms in the EEZ requires more effective engagement in the ongoing struggle to interpret and
shape the international law of the sea”. See Kraska (2011), p. 9.
7.2 Coastal States’ Environmental Jurisdiction in the Law of the Sea: Seeing Beyond. . .
207
scholarship. Therefore, if a state has control over natural resources, it has environmental jurisdiction (rights and duties) to manage those resources in the least
degrading way to the marine environment.
On the first assertion, knowing that coastal states may feel tempted to camouflage
excessive jurisdictional claims as environmentally sound practices,
78 the drafters of
the Convention codified the traditional “gradual approach” to coastal state jurisdiction seaward, or “progressive jurisdiction”, according to which the intensity of rights
and duties over adjacent areas to the shore is not uniform and will be directly
proportional to the proximity to the shore—the closer, the stronger.
79 This premise
has rendered coastal states’ powers beyond the territorial sea traditionally limited,
80
as on the continental shelf, where coastal state jurisdiction is less than its authority
over internal waters and the territorial sea.
Directly embedded into such a gradual approach are concerns by naval and
maritime powers of losing navigational and other high seas freedoms to special
interests of coastal and port states.
81 Of particular relevance to the debate between
increased environmental protection and freedom of navigation are the so-called
maritime and military security concerns. Policy-makers and strategists of maritime
states consider that an enhanced environmental jurisdiction could serve as an alibi
for curtailing navigational rights of both military and merchant fleets, thereby
leaving threats such as piracy, terrorism, human and drug-trafficking by sea unaccounted for. The fundamental tension between military security interests and environmental concerns will be analyzed in a specific section below, so as to tackle the
traditional view of maritime security considerations as justifying restrained environmental powers by coastal states.
The second premise, that marine resource control is the cradle of coastal state
environmental jurisdiction on the continental shelf, the reason why coastal states are
entitled environmental powers in the place, will also be scrutinized in detail, as a
fundamental step in assessing the nature and scope of those powers. In fact, it flows
logically that marine resources and life are part of the environment—a key ITLOS
78 Maria Gavouneli considers that “the affirmation of State power within the prescribed limits does
not preclude further, often unilateral, attempts not to affirm its already established jurisdiction but
rather to exclude other users of the seas”. See Gavouneli (2014), p. 14.
79 Remember the principle according to which coastal states’ powers over maritime ones derives
from sovereignty over the land. “The land is the legal source of the power which a State may
exercise over territorial extensions to seaward”. See North Sea Continental Shelf cases (Federal
Republic of Germany v Denmark, Federal Republic of Germany v the Netherlands), para 96.
80 In this sense, this book shares the opinion of Bodansky (1991), p. 755.
81 James Kraska claims that the liberal ocean order, as he calls it, “faces widespread acceptance as
well as concerted challenge and preserving broad and permissive understanding of high seas
freedoms in the EEZ requires more effective engagement in the ongoing struggle to interpret and
shape the international law of the sea”. See Kraska (2011), p. 9.
7.2 Coastal States’ Environmental Jurisdiction in the Law of the Sea: Seeing Beyond. . .
207