“constitution of the oceans”
37 remains, in the view of some commentators, “the one
example of a successful integral document, which has come to prevail over any other
expression of State power by the sheer force of its existence”.
38
UNCLOS, however, does not offer enough clarity on the activities that may be
regulated by the coastal state, nor the material extent of the jurisdiction to regulate
seabed activities under national jurisdiction. When disciplining the environmental
jurisdiction of states—flag, coastal and port states alike—on the outer continental
shelf, the Convention has embraced ambiguous terms and relied on generalized
formulations.
39 For instance, it does not specifically address some environmentrelated questions, such as the regulation of the establishment of marine protected
areas by coastal states on the outer continental shelf; nor has it clearly regulated the
practice of bioprospection or the sampling of genetic resources in areas within
national jurisdiction. The very definition of bioprospection is not consensual in the
law of the sea, as views differ: to industrialized states, bioprospecting ought to be
considered as marine scientific research, whereas to coastal developing states it
clearly is a commercial activity that ultimately profits from resources inhabiting
the seabed.
In addition to that, confusion still exists as to the precise rights and powers of
coastal states on the continental shelf’s entirety. As rightfully pointed by Joanna
Mossop, one regime of the continental shelf does not fit all, as certain rules vary
between the shelf within and beyond 200 nm.
40 Take, for instance, the case of the
right to regulate and authorize marine scientific research on the continental shelf,
regulated by Art. 246 UNCLOS. According to that provision, marine scientific
research shall be conducted with the consent of the coastal state, which may not
withhold consent in specific situations—paragraph 5. The situations which restrict
the right of coastal states to withhold consent to research projects on their maritime
spaces vary between the continental shelf within and beyond 200 nm, what suggests
the existence of a dual legal treatment for the issue. On the continental shelf within
200 nm, coastal states shall grant consent under normal circumstances, whereas
beyond 200 nm, those states may not withhold consent, except for specific situations.
In light of that, some coastal states’ interpretations of the right to regulate marine
scientific research vary so much that certain states, such as Brazil, claim the right to
regulate all kinds of research both on the inner continental shelf and on the area
claimed outer limits.
41
This work aims to map out and understand coastal states’ competencies to
regulate activities which may impact the marine environment of that specific maritime space—particularly in light of the normative overlaps between the continental
shelf, the EEZ, the high seas and the Area. The exercise of environmental powers in
37 Koh (1982) Speech.
38 Boyle (2005), pp. 563–567.
39 See generally Ong (2010).
40 Mossop (2016), p. 193.
41 Resolution no. 003/2010, Interministerial Commission for Marine Resources (CIRM).
10
1 Introduction: Setting the Stage
37 remains, in the view of some commentators, “the one
example of a successful integral document, which has come to prevail over any other
expression of State power by the sheer force of its existence”.
38
UNCLOS, however, does not offer enough clarity on the activities that may be
regulated by the coastal state, nor the material extent of the jurisdiction to regulate
seabed activities under national jurisdiction. When disciplining the environmental
jurisdiction of states—flag, coastal and port states alike—on the outer continental
shelf, the Convention has embraced ambiguous terms and relied on generalized
formulations.
39 For instance, it does not specifically address some environmentrelated questions, such as the regulation of the establishment of marine protected
areas by coastal states on the outer continental shelf; nor has it clearly regulated the
practice of bioprospection or the sampling of genetic resources in areas within
national jurisdiction. The very definition of bioprospection is not consensual in the
law of the sea, as views differ: to industrialized states, bioprospecting ought to be
considered as marine scientific research, whereas to coastal developing states it
clearly is a commercial activity that ultimately profits from resources inhabiting
the seabed.
In addition to that, confusion still exists as to the precise rights and powers of
coastal states on the continental shelf’s entirety. As rightfully pointed by Joanna
Mossop, one regime of the continental shelf does not fit all, as certain rules vary
between the shelf within and beyond 200 nm.
40 Take, for instance, the case of the
right to regulate and authorize marine scientific research on the continental shelf,
regulated by Art. 246 UNCLOS. According to that provision, marine scientific
research shall be conducted with the consent of the coastal state, which may not
withhold consent in specific situations—paragraph 5. The situations which restrict
the right of coastal states to withhold consent to research projects on their maritime
spaces vary between the continental shelf within and beyond 200 nm, what suggests
the existence of a dual legal treatment for the issue. On the continental shelf within
200 nm, coastal states shall grant consent under normal circumstances, whereas
beyond 200 nm, those states may not withhold consent, except for specific situations.
In light of that, some coastal states’ interpretations of the right to regulate marine
scientific research vary so much that certain states, such as Brazil, claim the right to
regulate all kinds of research both on the inner continental shelf and on the area
claimed outer limits.
41
This work aims to map out and understand coastal states’ competencies to
regulate activities which may impact the marine environment of that specific maritime space—particularly in light of the normative overlaps between the continental
shelf, the EEZ, the high seas and the Area. The exercise of environmental powers in
37 Koh (1982) Speech.
38 Boyle (2005), pp. 563–567.
39 See generally Ong (2010).
40 Mossop (2016), p. 193.
41 Resolution no. 003/2010, Interministerial Commission for Marine Resources (CIRM).
10
1 Introduction: Setting the Stage