environmental treaties may offer legal ground for the exercise of environmental
powers by coastal states over the continental shelf, including its sedentary species. In
fact, the category of “sovereign rights” contained in Art. 56 UNCLOS, which
includes exploration, exploitation, management and conservation, refers simply to
natural resources and not to a physical medium, such as the water column or the
seafloor. Those sovereign rights may assume the scope of environmental rights (as in
the case of management and conservation measures, confirmed by the ITLOS in the
Southern Bluefin Tuna case as measures aimed at the protection of the marine
environment).
14 Yet, together with those rights, coastal states also enjoy an environmental jurisdiction, which does not relate purely to natural resources and whose
object is the quality and health of the marine environment at large—the second
dimension of the environmental powers of coastal states over areas within national
jurisdiction, analyzed below. That is also the opinion of Joanna Mossop, to whom
Coastal states have legal obligations to protect the biodiversity on their continental shelves.
Part VI of UNCLOS imposes no obligation to protect sedentary species, compared with Part
V relating to the EEZ, which imposes obligations on coastal states to ensure the sustainable
utilization of the living resources of the EEZ. However, Part XII of UNCLOS imposes a
number of environmental obligations on all states, including coastal states. In addition, other
treaties and customary international law impose separate obligations.
15
The same holds true with respect to the duty of “mutual due regard” between flag
and coastal states in the EEZ. Even though the Convention has not expressly bound
flag states to give “due regard” to coastal state rights on the continental shelf, such a
duty is to be read in light of the history of the 1958 CSC, which inspired Part VI
UNCLOS. It is not entirely inconceivable that, on specific occasions, high seas rights
be abridged to promote coastal states’ ecological interests.
Regarding fisheries’ regulation, for instance, whenever living resources exist
under the jurisdiction of the coastal state, there is municipal jurisdiction to protect,
preserve and stimulate the sustainable and rational use of those resources. That is
essentially an environmental power. This claim follows from a holistic interpretation
of UNCLOS Part XII, on the protection and preservation of the marine environment,
the right of permanent sovereignty over domestic natural resources (UNCLOS Art.
193), and conventional obligations towards the defense of the environment present
in other binding instruments.
Also, provisions of the CBD could be read in such way as to impose conservation
obligations vis-à-vis sedentary species, inasmuch as the CBD provisions be
14 The Tribunal has also found that Art. 192, together with Art. 58 (3), reinforce the obligation of
flag states to ensure that vessels flying their flag neither their nationals are engaged in IUU fishing
activities, thus confirming the intimate connection between protection and preservation of the
marine environment and management and conservation of living resources. See ITLOS, Request
for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion,
2 April 2015, ITLOS Reports 2015, para 124.
15 Mossop (2018), p. 446.
226
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .
powers by coastal states over the continental shelf, including its sedentary species. In
fact, the category of “sovereign rights” contained in Art. 56 UNCLOS, which
includes exploration, exploitation, management and conservation, refers simply to
natural resources and not to a physical medium, such as the water column or the
seafloor. Those sovereign rights may assume the scope of environmental rights (as in
the case of management and conservation measures, confirmed by the ITLOS in the
Southern Bluefin Tuna case as measures aimed at the protection of the marine
environment).
14 Yet, together with those rights, coastal states also enjoy an environmental jurisdiction, which does not relate purely to natural resources and whose
object is the quality and health of the marine environment at large—the second
dimension of the environmental powers of coastal states over areas within national
jurisdiction, analyzed below. That is also the opinion of Joanna Mossop, to whom
Coastal states have legal obligations to protect the biodiversity on their continental shelves.
Part VI of UNCLOS imposes no obligation to protect sedentary species, compared with Part
V relating to the EEZ, which imposes obligations on coastal states to ensure the sustainable
utilization of the living resources of the EEZ. However, Part XII of UNCLOS imposes a
number of environmental obligations on all states, including coastal states. In addition, other
treaties and customary international law impose separate obligations.
15
The same holds true with respect to the duty of “mutual due regard” between flag
and coastal states in the EEZ. Even though the Convention has not expressly bound
flag states to give “due regard” to coastal state rights on the continental shelf, such a
duty is to be read in light of the history of the 1958 CSC, which inspired Part VI
UNCLOS. It is not entirely inconceivable that, on specific occasions, high seas rights
be abridged to promote coastal states’ ecological interests.
Regarding fisheries’ regulation, for instance, whenever living resources exist
under the jurisdiction of the coastal state, there is municipal jurisdiction to protect,
preserve and stimulate the sustainable and rational use of those resources. That is
essentially an environmental power. This claim follows from a holistic interpretation
of UNCLOS Part XII, on the protection and preservation of the marine environment,
the right of permanent sovereignty over domestic natural resources (UNCLOS Art.
193), and conventional obligations towards the defense of the environment present
in other binding instruments.
Also, provisions of the CBD could be read in such way as to impose conservation
obligations vis-à-vis sedentary species, inasmuch as the CBD provisions be
14 The Tribunal has also found that Art. 192, together with Art. 58 (3), reinforce the obligation of
flag states to ensure that vessels flying their flag neither their nationals are engaged in IUU fishing
activities, thus confirming the intimate connection between protection and preservation of the
marine environment and management and conservation of living resources. See ITLOS, Request
for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion,
2 April 2015, ITLOS Reports 2015, para 124.
15 Mossop (2018), p. 446.
226
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .