but the duty to adopt and enforce legislation aiming at conserving those same
resources and general marine health in jurisdictional spaces.
83
That the right to conserve and manage natural resources extrapolates the strict
meaning of conservation, was already pointed out by the ITLOS, in the Virginia G
case:
the use of the terms ‘conserving’ and ‘managing’ in article 56 of the Convention indicates
that the rights of coastal States go beyond conservation in its strict sense. The fact that
conservation and management cover different aspects is supported by article 61 of the
Convention, which addresses the issue of conservation as its title indicates, whereas article
62 of the Convention deals with both conservation and management.
84
However, the Tribunal has found that management and conservation measures
must be directly connected to fishing, what could lead one to believe that activities
other than fishing, but which also impact on the marine environment, would fall
beyond coastal states’ environmental jurisdiction.
85 That conclusion could not be
more wrong. It is the scope of this work to emphasize that it is possible, legal and
reasonable to extract a reading of UNCLOS, in which environmental powers to
conserve and manage living resources other that those “fished” are comprised by the
right-duty of coastal states to manage resources. It is not just about protecting
fisheries but taking measures towards protecting living organisms, including genetic
resources, and their habitats.
86
The concept of a “right-duty” is widely employed in Brazilian legal doctrine,
namely in constitutional studies, to refer to a category of rights, in a sense of
formulation containing a subjective Anspruch to a particular good, which is simultaneously an obligation to act or behave on a particular way.
87 An illustration of this
legal formula in practice is the Brazilian right-duty to vote, which is concurrently a
subjective power and a duty in Brazil, where voting is mandatory.
88 Applied to the
law of the sea, the right-duty to manage the continental shelf contains, on the one
hand, the right to explore and exploit, thus pursuing national developmental policies
and the welfare of its people, and the duty to protect and conserve the marine space
under the coastal state’s jurisdiction, by enacting and enforcing national laws and
83 In a similar view, Joanna Mossop writes that “the right to explore and exploit the ocean resources
is accompanied by the responsibility to consider the environmental impacts of such activity”. See
Mossop (2013), p. 183.
84 ITLOS The M/V Virginia G Case, Panama/Guinea-Bissau, para 212.
85 Id. para 215.
86 By habitat conservation, one understands the adoption and enforcement of rules which does not
directly connect to fishing stocks, but only in an indirect manner. The reasoning for this claim is
developed throughout the current item.
87 For more on the idea of a “direito-dever” in the Brazilian legal order, see Andrade Neto
(2018), p. 212.
88 In Brazil, voting is mandatory for citizens aged between 18 and 70 years-old, with but a few
exceptions, and the penalty for not voting is a fine of a symbolic value (approx. four Reais, or less
than one Euro, exchange rate of November 2018). Compulsory voting is regulated by Federal Act
no. 4.737/90.
7.2 Coastal States’ Environmental Jurisdiction in the Law of the Sea: Seeing Beyond. . .
209
resources and general marine health in jurisdictional spaces.
83
That the right to conserve and manage natural resources extrapolates the strict
meaning of conservation, was already pointed out by the ITLOS, in the Virginia G
case:
the use of the terms ‘conserving’ and ‘managing’ in article 56 of the Convention indicates
that the rights of coastal States go beyond conservation in its strict sense. The fact that
conservation and management cover different aspects is supported by article 61 of the
Convention, which addresses the issue of conservation as its title indicates, whereas article
62 of the Convention deals with both conservation and management.
84
However, the Tribunal has found that management and conservation measures
must be directly connected to fishing, what could lead one to believe that activities
other than fishing, but which also impact on the marine environment, would fall
beyond coastal states’ environmental jurisdiction.
85 That conclusion could not be
more wrong. It is the scope of this work to emphasize that it is possible, legal and
reasonable to extract a reading of UNCLOS, in which environmental powers to
conserve and manage living resources other that those “fished” are comprised by the
right-duty of coastal states to manage resources. It is not just about protecting
fisheries but taking measures towards protecting living organisms, including genetic
resources, and their habitats.
86
The concept of a “right-duty” is widely employed in Brazilian legal doctrine,
namely in constitutional studies, to refer to a category of rights, in a sense of
formulation containing a subjective Anspruch to a particular good, which is simultaneously an obligation to act or behave on a particular way.
87 An illustration of this
legal formula in practice is the Brazilian right-duty to vote, which is concurrently a
subjective power and a duty in Brazil, where voting is mandatory.
88 Applied to the
law of the sea, the right-duty to manage the continental shelf contains, on the one
hand, the right to explore and exploit, thus pursuing national developmental policies
and the welfare of its people, and the duty to protect and conserve the marine space
under the coastal state’s jurisdiction, by enacting and enforcing national laws and
83 In a similar view, Joanna Mossop writes that “the right to explore and exploit the ocean resources
is accompanied by the responsibility to consider the environmental impacts of such activity”. See
Mossop (2013), p. 183.
84 ITLOS The M/V Virginia G Case, Panama/Guinea-Bissau, para 212.
85 Id. para 215.
86 By habitat conservation, one understands the adoption and enforcement of rules which does not
directly connect to fishing stocks, but only in an indirect manner. The reasoning for this claim is
developed throughout the current item.
87 For more on the idea of a “direito-dever” in the Brazilian legal order, see Andrade Neto
(2018), p. 212.
88 In Brazil, voting is mandatory for citizens aged between 18 and 70 years-old, with but a few
exceptions, and the penalty for not voting is a fine of a symbolic value (approx. four Reais, or less
than one Euro, exchange rate of November 2018). Compulsory voting is regulated by Federal Act
no. 4.737/90.
7.2 Coastal States’ Environmental Jurisdiction in the Law of the Sea: Seeing Beyond. . .
209