phrase “living natural resources”, within the EEZ, refers not only to fishes, but to
marine flora and genetic organisms inhabiting the seabed and the subsoil.
11
Regardless of UNCLOS’ terminological ambiguity, one consideration is clear:
provisions on living resources of the EEZ do not apply to sedentary species as
defined in Art. 77 (4) UNCLOS; and the only living resources upon which coastal
states exercise sovereign rights on the shelf beyond 200 nm are the sedentary
species. In part, because the normative extent of management and conservation
powers is enshrined and listed (albeit not in an exhaustive fashion) in Arts. 61 to
67 UNCLOS, applicable to the EEZ, which comprise measures such as: the determination by coastal states of the “total allowable catch” of living resources (Art. 62
(2)); the obligation to promote the “optimum utilization” of natural resources (Art.
62(1)); the duty to give other states the surplus of allowable catch, in case the coastal
state does not have the capacity to harvest the entirety of it (Art. 62(3)), among
others. In part, because nothing in the Convention enables such provisions to apply
to the continental shelf; quite the contrary, the wording of UNCLOS could not be
more vibrant in ruling the regime of sedentary species out of Part V. So, could Part V
provisions on the conservation of marine living resources be applied to sedentary
species of the outer continental shelf by means of legal analogy? The answer is an
eloquent “no”, due to the different nature of the EEZ and continental shelf regimes.
12
Beyond the EEZ, the concept of “living organisms” is expressly limited to sedentary
species of Art. 77 (4) UNCLOS, thus not including general benthic fauna such as
fishes that just eventually touch the seafloor.
Consequently, a glance at UNCLOS leads to the conclusion that management and
conservation of sedentary species of the outer continental shelf are left outside
coastal states’ sovereign rights. In line with this understanding, coastal states
would not be entitled to take measures aimed at managing or conserving living
resources of the continental shelf beyond 200 nm. The practical consequences of
such a view are that coastal states may only explore and exploit, but not manage in
any sense, nor adopt conservation measures to sedentary species beyond the EEZ.
Such a strict interpretation of the Convention does not take into coastal state’s
environmental powers and obligations seriously. It seems illogical that provisions
applicable to sedentary species within the 200-nm zone not be valid for the continental shelf beyond 200 nm—even if the Convention does not expressly endorse
such an interpretation.
13
Even realizing that Parts V and VI do not communicate between each other with
regard to living seabed organisms, other provisions within UNCLOS and other
11 Proelss (2017), p. 427, mn 14.
12 The inappropriateness of resorting to analogy in this case was also discussed by Rüdiger Wolfrum
and Nele Matz-Lück, to whom the clear distinction between the EEZ and continental shelf regimes
must be respected. See Matz-Lück and Wolfrum (2000), p. 452.
13 In the same direction, Joanna Mossop is of the view that “it would seem a logical step to say that
the flag state also has an obligation to comply with coastal state conservation measures enacted in
respect of sedentary species”, even if UNCLOS has not explicitly referred to management and
conservation of living organisms of the continental shelf. See Mossop (2018), p. 446.
8.1 Environmental Jurisdiction to Prescribe
225
marine flora and genetic organisms inhabiting the seabed and the subsoil.
11
Regardless of UNCLOS’ terminological ambiguity, one consideration is clear:
provisions on living resources of the EEZ do not apply to sedentary species as
defined in Art. 77 (4) UNCLOS; and the only living resources upon which coastal
states exercise sovereign rights on the shelf beyond 200 nm are the sedentary
species. In part, because the normative extent of management and conservation
powers is enshrined and listed (albeit not in an exhaustive fashion) in Arts. 61 to
67 UNCLOS, applicable to the EEZ, which comprise measures such as: the determination by coastal states of the “total allowable catch” of living resources (Art. 62
(2)); the obligation to promote the “optimum utilization” of natural resources (Art.
62(1)); the duty to give other states the surplus of allowable catch, in case the coastal
state does not have the capacity to harvest the entirety of it (Art. 62(3)), among
others. In part, because nothing in the Convention enables such provisions to apply
to the continental shelf; quite the contrary, the wording of UNCLOS could not be
more vibrant in ruling the regime of sedentary species out of Part V. So, could Part V
provisions on the conservation of marine living resources be applied to sedentary
species of the outer continental shelf by means of legal analogy? The answer is an
eloquent “no”, due to the different nature of the EEZ and continental shelf regimes.
12
Beyond the EEZ, the concept of “living organisms” is expressly limited to sedentary
species of Art. 77 (4) UNCLOS, thus not including general benthic fauna such as
fishes that just eventually touch the seafloor.
Consequently, a glance at UNCLOS leads to the conclusion that management and
conservation of sedentary species of the outer continental shelf are left outside
coastal states’ sovereign rights. In line with this understanding, coastal states
would not be entitled to take measures aimed at managing or conserving living
resources of the continental shelf beyond 200 nm. The practical consequences of
such a view are that coastal states may only explore and exploit, but not manage in
any sense, nor adopt conservation measures to sedentary species beyond the EEZ.
Such a strict interpretation of the Convention does not take into coastal state’s
environmental powers and obligations seriously. It seems illogical that provisions
applicable to sedentary species within the 200-nm zone not be valid for the continental shelf beyond 200 nm—even if the Convention does not expressly endorse
such an interpretation.
13
Even realizing that Parts V and VI do not communicate between each other with
regard to living seabed organisms, other provisions within UNCLOS and other
11 Proelss (2017), p. 427, mn 14.
12 The inappropriateness of resorting to analogy in this case was also discussed by Rüdiger Wolfrum
and Nele Matz-Lück, to whom the clear distinction between the EEZ and continental shelf regimes
must be respected. See Matz-Lück and Wolfrum (2000), p. 452.
13 In the same direction, Joanna Mossop is of the view that “it would seem a logical step to say that
the flag state also has an obligation to comply with coastal state conservation measures enacted in
respect of sedentary species”, even if UNCLOS has not explicitly referred to management and
conservation of living organisms of the continental shelf. See Mossop (2018), p. 446.
8.1 Environmental Jurisdiction to Prescribe
225