The sovereign rights set out in Art. 56 which relate to the seabed and subsoil shall
be exercised in accordance with Part VI, pursuant to paragraph 3 of that article. Note
that the expression used is “in accordance with” and not “subject to”, which
emphasizes that both regimes of the EEZ and continental shelf are independent but
connected in the new law of the sea.
8 Alexander Proelss even speaks of an “overarching regime” applicable to the 200-nm zone, where “a closer analysis of the
history and the ratio of the EEZ arguably militates in favor of accepting a ‘shift of
emphasis in favor of the coastal state’”.
9 The same can be said, in rough terms, with
regard to the continental shelf, despite the slight decrease in favoritism over the
seafloor beyond 200 nm.
Upfront, a controversy emerges as to coastal states’ rights over living resources of
the continental shelf: unlike in Art. 56 (1) (a), no express mention to “manage” or
“conserve” is made in Part VI to the seafloor. A strict and literal reading of the
Convention would, therefore, conclude that sovereign rights to manage and conserve
natural resources would apply solely to the EEZ, thus excluding living organisms of
the outer continental shelf from management or conservation measures by coastal
states. Within the EEZ, the conservation and management of living seabed organisms that do not qualify as sedentary species is governed by Art. 56 (1), while
sedentary species are governed by Art. 77, Part VI.
10
However, the terminology of the Convention in this regard is not unambiguous.
For instance, Art. 61 (3) links conservation and management measures to the
attainment of a “maximum sustainable yield”, which is to mirror economic and
environmental factors, including the economic needs of fishing communities and
specific fishing patterns. A connection could be, thus, established between conservation measures and environmental considerations, regardless of the locus where
such measures take place. Likewise, Art. 65 is directed specifically at marine
mammals and enables coastal states to adopt conservation measures stricter than
those provided for in Part V, as long as they are aimed at mammals in general, and
cetaceans in particular. In this sense, a traditional interpretation could claim that
“conservation” and “management” rights refer exclusively to the specific category of
fisheries and marine mammals. Nonetheless, it seems reasonable to claim that the
8 Such interconnection has been highlighted by the ICJ already in 1985 and went undisputed ever
since. In the Continental Shelf case between Libya and Malta, the bench pondered that “even
though the present case relates only to the delimitation of the continental shelf and not to that of the
exclusive economic zone, the principles and rules underlying the latter concept cannot be left out of
consideration. As the 1982 Convention demonstrates, the two institutions—continental shelf and
exclusive economic zone—are linked together in modern law” (emphasis added). See ICJ, Continental Shelf (Libya v. Malta), 1985 ICJ 13, para 33.
9 Proelss (2017), p. 433, mn 28.
10 The inclusion of “sedentary species” in the continental shelf doctrine has historical roots and
results from diplomatic quarrels. According to Shirley Scott, Australia’s commitment to promote
the inclusion of sedentary species in that regime, which was primarily based on its goal to remove
the threat posed by Japanese pearl fisheries off the Australian coast, turned out to be successful in
1953. See Scott (1992), p. 800.
224
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .
be exercised in accordance with Part VI, pursuant to paragraph 3 of that article. Note
that the expression used is “in accordance with” and not “subject to”, which
emphasizes that both regimes of the EEZ and continental shelf are independent but
connected in the new law of the sea.
8 Alexander Proelss even speaks of an “overarching regime” applicable to the 200-nm zone, where “a closer analysis of the
history and the ratio of the EEZ arguably militates in favor of accepting a ‘shift of
emphasis in favor of the coastal state’”.
9 The same can be said, in rough terms, with
regard to the continental shelf, despite the slight decrease in favoritism over the
seafloor beyond 200 nm.
Upfront, a controversy emerges as to coastal states’ rights over living resources of
the continental shelf: unlike in Art. 56 (1) (a), no express mention to “manage” or
“conserve” is made in Part VI to the seafloor. A strict and literal reading of the
Convention would, therefore, conclude that sovereign rights to manage and conserve
natural resources would apply solely to the EEZ, thus excluding living organisms of
the outer continental shelf from management or conservation measures by coastal
states. Within the EEZ, the conservation and management of living seabed organisms that do not qualify as sedentary species is governed by Art. 56 (1), while
sedentary species are governed by Art. 77, Part VI.
10
However, the terminology of the Convention in this regard is not unambiguous.
For instance, Art. 61 (3) links conservation and management measures to the
attainment of a “maximum sustainable yield”, which is to mirror economic and
environmental factors, including the economic needs of fishing communities and
specific fishing patterns. A connection could be, thus, established between conservation measures and environmental considerations, regardless of the locus where
such measures take place. Likewise, Art. 65 is directed specifically at marine
mammals and enables coastal states to adopt conservation measures stricter than
those provided for in Part V, as long as they are aimed at mammals in general, and
cetaceans in particular. In this sense, a traditional interpretation could claim that
“conservation” and “management” rights refer exclusively to the specific category of
fisheries and marine mammals. Nonetheless, it seems reasonable to claim that the
8 Such interconnection has been highlighted by the ICJ already in 1985 and went undisputed ever
since. In the Continental Shelf case between Libya and Malta, the bench pondered that “even
though the present case relates only to the delimitation of the continental shelf and not to that of the
exclusive economic zone, the principles and rules underlying the latter concept cannot be left out of
consideration. As the 1982 Convention demonstrates, the two institutions—continental shelf and
exclusive economic zone—are linked together in modern law” (emphasis added). See ICJ, Continental Shelf (Libya v. Malta), 1985 ICJ 13, para 33.
9 Proelss (2017), p. 433, mn 28.
10 The inclusion of “sedentary species” in the continental shelf doctrine has historical roots and
results from diplomatic quarrels. According to Shirley Scott, Australia’s commitment to promote
the inclusion of sedentary species in that regime, which was primarily based on its goal to remove
the threat posed by Japanese pearl fisheries off the Australian coast, turned out to be successful in
1953. See Scott (1992), p. 800.
224
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .