regulations consistent with international customary and treaty law on marine environmental conservation.
89
An important note on the nature of a right-duty is needed, particularly considering
possible criticisms as to its (dis)service in grounding excessive jurisdictional claims
over increasing maritime zones. The right-duty postulated in this work should in no
circumstance be confused with claims to “ownership” over the areas under some
degree of national jurisdiction, but solely a particular set of rights and obligations
applicable to those areas. In fact, when Art. 56 UNCLOS mentions sovereign rights
“for the purpose of”, it makes clear that those rights are not associated with the EEZ
“in a spatial sense, but are mainly related to its economic potential”.
90 It is the case to
ensure that no “sense of ownership” over spaces under national jurisdiction prevail.
Such a concern is formulated by James Kraska, to whom
[t]he EEZ has acquired an undeniable psychological and emotional importance as an element
of homeland security, national “sovereignty,” and nationalism. Sovereign rights over the
living and non-living resources inevitably morph into a sense of not just entitlement to the
resources, but ownership over the area—including the water column and the airspace.
91
Another concern relates to the extension ratione materiae of coastal states’
powers over the natural resources of the continental shelf. Admittedly, Art.
77 (1) UNCLOS grants coastal states sovereign rights to explore and exploit natural
resources, no mention made to “conservation” or “management”, as in Art.
56 (1) (a) on the EEZ. Does it mean that coastal states exercise no other sovereign
rights over the continental shelf than those connected exclusively with the “exploration” and “exploitation” of natural resources?
A dogmatic reading of Part VI of the Convention would certainly indicate so,
especially if such a reading be deliberately isolated from other provisions of the
Convention that complement the regime of the continental shelf. In fact, sovereign
rights over natural resources of the continental shelf are not limited to exploration
and exploitation. They also include management and conservation measures, the
kind of measures that may restrict navigational freedoms and generate the impression that coastal states believe themselves to own the waters within 200 miles from
the shore.
Coastal states enjoy not only sovereign rights over natural resources of the
continental shelf, but also a more comprehensive jurisdiction over continental
shelf activities, as well as a jurisdiction to protect and preserve the marine
89 Examples of customary environmental rules include some procedural obligations, such as the
principle of preventive action, conduction of EIAs or the duty to cooperate before, during and after
any actions that might adversely impact the marine environment. For more on customary environmental rules, see Sands and Peel (2012), pp. 111, 187.
90 According to Proelss, the phrase “for the purpose of” “requires that a direct connection exist
between the activity concerned and the fields mentioned in Art. 56 (1) (a)” so that the coastal state
may be entitled to sovereign rights. See Proelss (2017), p. 425, mn 11.
91 Kraska (2011), p. 7.
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7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...
89
An important note on the nature of a right-duty is needed, particularly considering
possible criticisms as to its (dis)service in grounding excessive jurisdictional claims
over increasing maritime zones. The right-duty postulated in this work should in no
circumstance be confused with claims to “ownership” over the areas under some
degree of national jurisdiction, but solely a particular set of rights and obligations
applicable to those areas. In fact, when Art. 56 UNCLOS mentions sovereign rights
“for the purpose of”, it makes clear that those rights are not associated with the EEZ
“in a spatial sense, but are mainly related to its economic potential”.
90 It is the case to
ensure that no “sense of ownership” over spaces under national jurisdiction prevail.
Such a concern is formulated by James Kraska, to whom
[t]he EEZ has acquired an undeniable psychological and emotional importance as an element
of homeland security, national “sovereignty,” and nationalism. Sovereign rights over the
living and non-living resources inevitably morph into a sense of not just entitlement to the
resources, but ownership over the area—including the water column and the airspace.
91
Another concern relates to the extension ratione materiae of coastal states’
powers over the natural resources of the continental shelf. Admittedly, Art.
77 (1) UNCLOS grants coastal states sovereign rights to explore and exploit natural
resources, no mention made to “conservation” or “management”, as in Art.
56 (1) (a) on the EEZ. Does it mean that coastal states exercise no other sovereign
rights over the continental shelf than those connected exclusively with the “exploration” and “exploitation” of natural resources?
A dogmatic reading of Part VI of the Convention would certainly indicate so,
especially if such a reading be deliberately isolated from other provisions of the
Convention that complement the regime of the continental shelf. In fact, sovereign
rights over natural resources of the continental shelf are not limited to exploration
and exploitation. They also include management and conservation measures, the
kind of measures that may restrict navigational freedoms and generate the impression that coastal states believe themselves to own the waters within 200 miles from
the shore.
Coastal states enjoy not only sovereign rights over natural resources of the
continental shelf, but also a more comprehensive jurisdiction over continental
shelf activities, as well as a jurisdiction to protect and preserve the marine
89 Examples of customary environmental rules include some procedural obligations, such as the
principle of preventive action, conduction of EIAs or the duty to cooperate before, during and after
any actions that might adversely impact the marine environment. For more on customary environmental rules, see Sands and Peel (2012), pp. 111, 187.
90 According to Proelss, the phrase “for the purpose of” “requires that a direct connection exist
between the activity concerned and the fields mentioned in Art. 56 (1) (a)” so that the coastal state
may be entitled to sovereign rights. See Proelss (2017), p. 425, mn 11.
91 Kraska (2011), p. 7.
210
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...