and assistance, monitoring and environmental assessment, notification and intervention, and state responsibility”.
93
To adapt Boyle’s words, a general right-duty to manage natural resources would
function as an umbrella-principle, under which a “complex and wide-ranging structure of powers and duties” of an environmental nature interact. In short, coastal
states’ rights range from having the prerogative to legislate on the uses of the waters
under national jurisdiction—taking into account the specificities of every context
and the precise goals of every national society, in line with Art. 193 (1) UNCLOS, to
enforcing domestic legislation, so as to prevent unlawful uses of marine resources
and the degradation of the submersed environment under national jurisdiction. Such
rights, as applied to continental shelf regulation, deserve to be analyzed in a specific
item, due to the intricacy of legal questions arising from the exercise of prescriptive
and enforcement powers in the law of the sea.
Onto the particular environmental duties covered by the general right-duty to
manage the marine environment of the continental shelf, an analysis of four particular obligations suffices for the purposes of this work. Firstly, one could allude to the
duty not to cause damage by pollution to the environment of other states, Art.
194 (2) UNCLOS. The straightforward phrasing of that provision has been praised
as containing a stronger obligation than the one usually found in international
customary law, which often relates to the duty not to cause significant transboundary
harm, as reinforced by the ICJ in the Pulp Mills case.
94 This duty has also been
confirmed by the ITLOS in the 2011 Advisory Opinion on the responsibility of
sponsoring states and private entities with respect to activities in the Area.
95 In
international jurisprudence, the obligation to prevent has been defined as an obligation of means, not of result; an obligation of due diligence, in which states are not
required to guarantee a certain result but must prove to have taken all the necessary
measures domestically to prevent environmental harm.
96
Similarly, the Convention crystalizes the duty not to transfer damage or hazards
from one area to another or to transform one type of pollution into another, so Art.
195 UNCLOS.
97 In essence, these duties limit coastal states’ powers when adopting
measures to prevent, reduce and control pollution to the marine environment, by
clarifying that pollution must be fought at its sources, and not surreptitiously
transferred to another area—neither of other states nor the high seas. This duty is
credited with partially anticipating the integrative and ecosystem-oriented approach
93 Boyle (1985), p. 350.
94 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), para 101.
95 ITLOS, Responsibilities and obligations of States with respect to activities in the Area, para 148.
96 According to Mossop, this category of legal obligation requires states to “adopt appropriate rules
and measures to ensure the outcome, but also to monitor activities”. See Mossop (2018), p. 446.
97 The duty not to transfer pollution is also enshrined in Principle 14 of the Rio Declaration: “States
should effectively co-operate to discourage or prevent the relocation and transfer to other States of
any activities and substances that cause severe environmental degradation or are found to be
harmful to human health” (emphasis added). The Rio Declaration on Environment and Development, Rio de Janeiro, 1992.
212
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...
93
To adapt Boyle’s words, a general right-duty to manage natural resources would
function as an umbrella-principle, under which a “complex and wide-ranging structure of powers and duties” of an environmental nature interact. In short, coastal
states’ rights range from having the prerogative to legislate on the uses of the waters
under national jurisdiction—taking into account the specificities of every context
and the precise goals of every national society, in line with Art. 193 (1) UNCLOS, to
enforcing domestic legislation, so as to prevent unlawful uses of marine resources
and the degradation of the submersed environment under national jurisdiction. Such
rights, as applied to continental shelf regulation, deserve to be analyzed in a specific
item, due to the intricacy of legal questions arising from the exercise of prescriptive
and enforcement powers in the law of the sea.
Onto the particular environmental duties covered by the general right-duty to
manage the marine environment of the continental shelf, an analysis of four particular obligations suffices for the purposes of this work. Firstly, one could allude to the
duty not to cause damage by pollution to the environment of other states, Art.
194 (2) UNCLOS. The straightforward phrasing of that provision has been praised
as containing a stronger obligation than the one usually found in international
customary law, which often relates to the duty not to cause significant transboundary
harm, as reinforced by the ICJ in the Pulp Mills case.
94 This duty has also been
confirmed by the ITLOS in the 2011 Advisory Opinion on the responsibility of
sponsoring states and private entities with respect to activities in the Area.
95 In
international jurisprudence, the obligation to prevent has been defined as an obligation of means, not of result; an obligation of due diligence, in which states are not
required to guarantee a certain result but must prove to have taken all the necessary
measures domestically to prevent environmental harm.
96
Similarly, the Convention crystalizes the duty not to transfer damage or hazards
from one area to another or to transform one type of pollution into another, so Art.
195 UNCLOS.
97 In essence, these duties limit coastal states’ powers when adopting
measures to prevent, reduce and control pollution to the marine environment, by
clarifying that pollution must be fought at its sources, and not surreptitiously
transferred to another area—neither of other states nor the high seas. This duty is
credited with partially anticipating the integrative and ecosystem-oriented approach
93 Boyle (1985), p. 350.
94 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), para 101.
95 ITLOS, Responsibilities and obligations of States with respect to activities in the Area, para 148.
96 According to Mossop, this category of legal obligation requires states to “adopt appropriate rules
and measures to ensure the outcome, but also to monitor activities”. See Mossop (2018), p. 446.
97 The duty not to transfer pollution is also enshrined in Principle 14 of the Rio Declaration: “States
should effectively co-operate to discourage or prevent the relocation and transfer to other States of
any activities and substances that cause severe environmental degradation or are found to be
harmful to human health” (emphasis added). The Rio Declaration on Environment and Development, Rio de Janeiro, 1992.
212
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...