increased environmental conservation efforts may emerge from purpose- and
context-oriented interpretations.
In this task, the theory of UNCLOS as a “living treaty” has greatly inspired the
vies defended in this work. In line with that theory, UNCLOS is “a living instrument,
capable both of change in order to accommodate new challenges and of construing
novel associations of existing provisions, both in the text itself and in other international conventions, to support the evolving needs of the international community.”
107 It is undeniable that the international law of the sea, as any branch of
law, undergoes a permanent process of evolution and progressive development that
is linked to states’ practice and to institutional and academic interpretation of
UNCLOS provisions—a typical case of evolutionary interpretation of treaties, a
method of interpretation firmly situated in Arts. 31 to 33 of the VLCT.
A correct evolutionary interpretation of a given treaty necessarily combines
considerations of evolution (intertemporal) and intention of the parties at the time
of adoption. In other words, it calls for the interpreter to take into account the
changing needs of the objects protected by the treaty and the objective determination
of the parties’ intention while drafting the treaty, or the mens legislatoris.
108 While
there can be divergence as to the “objective” intention of UNCLOS negotiators
regarding the marine environment, one should repeatedly refer to the Convention’s
Preamble and drafting history, in order to extract the intention of establishing a legal
order for the seas that will promote the conservation of living resources and
protection and preservation of the marine environment.
109 And when it comes to
the intertemporal aspect of the law of the sea, we join Tullio Scovazzi in his opinion
that “the present challenges of international law of the sea are to be found in the
practical capacity of States to adapt and change old principles to conform with new
needs”.
110
Coastal states’ jurisdiction on the outer continental shelf is not a matter of black
and white, but rather of different shades of grey. As long as the protection of the
environment be regarded as the Trojan horse of coastal states for advancing national
jurisdiction seawards, thus violating the ordre publique océanique, the health of the
world’s oceans can be expected to decrease in coming years. And may coastal states
not be tempted to take abusive and unjustified unilateral measures, for every push
towards an expansion of sovereignty or jurisdiction over greater portions of maritime
zones comes an equally powerful reaction from the international community. In this
sense, it is risky and costly for coastal states to advance self-interests disguised as the
protection of global commons (such as the marine environment), particularly in the
current moment, when the international community accepts that universal problems
require universal and negotiated solutions.
107 Gavouneli (2007), p. 146.
108 For more on evolutionary interpretation, see Bjorge (2014), p. 9.
109 UNCLOS, Preamble.
110 Scovazzi (2000), p. 232.
216
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...
context-oriented interpretations.
In this task, the theory of UNCLOS as a “living treaty” has greatly inspired the
vies defended in this work. In line with that theory, UNCLOS is “a living instrument,
capable both of change in order to accommodate new challenges and of construing
novel associations of existing provisions, both in the text itself and in other international conventions, to support the evolving needs of the international community.”
107 It is undeniable that the international law of the sea, as any branch of
law, undergoes a permanent process of evolution and progressive development that
is linked to states’ practice and to institutional and academic interpretation of
UNCLOS provisions—a typical case of evolutionary interpretation of treaties, a
method of interpretation firmly situated in Arts. 31 to 33 of the VLCT.
A correct evolutionary interpretation of a given treaty necessarily combines
considerations of evolution (intertemporal) and intention of the parties at the time
of adoption. In other words, it calls for the interpreter to take into account the
changing needs of the objects protected by the treaty and the objective determination
of the parties’ intention while drafting the treaty, or the mens legislatoris.
108 While
there can be divergence as to the “objective” intention of UNCLOS negotiators
regarding the marine environment, one should repeatedly refer to the Convention’s
Preamble and drafting history, in order to extract the intention of establishing a legal
order for the seas that will promote the conservation of living resources and
protection and preservation of the marine environment.
109 And when it comes to
the intertemporal aspect of the law of the sea, we join Tullio Scovazzi in his opinion
that “the present challenges of international law of the sea are to be found in the
practical capacity of States to adapt and change old principles to conform with new
needs”.
110
Coastal states’ jurisdiction on the outer continental shelf is not a matter of black
and white, but rather of different shades of grey. As long as the protection of the
environment be regarded as the Trojan horse of coastal states for advancing national
jurisdiction seawards, thus violating the ordre publique océanique, the health of the
world’s oceans can be expected to decrease in coming years. And may coastal states
not be tempted to take abusive and unjustified unilateral measures, for every push
towards an expansion of sovereignty or jurisdiction over greater portions of maritime
zones comes an equally powerful reaction from the international community. In this
sense, it is risky and costly for coastal states to advance self-interests disguised as the
protection of global commons (such as the marine environment), particularly in the
current moment, when the international community accepts that universal problems
require universal and negotiated solutions.
107 Gavouneli (2007), p. 146.
108 For more on evolutionary interpretation, see Bjorge (2014), p. 9.
109 UNCLOS, Preamble.
110 Scovazzi (2000), p. 232.
216
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...