220, but should be held accountable by its flag state for breaching provisions of the
MARPOL Convention, or others, where applicable.
46
Yet, the exercise of enforcement powers by coastal states regarding the continental shelf has not been uncontroversial.
47 The much-praised balance between
coastal and flag state enforcement rights, achieved by UNCLOS, has been put to
test in some occasions, as coastal states have asserted increased powers for environmental purposes in areas within national jurisdiction. Such practices (also described
as “thickening jurisdiction”) are taken by some countries as excessive maritime
claims, what confirms their elevated conflict potential. It is, thus, mandatory for
coastal states with strong marine environmental agendas to be aware of the legal
limits of their regulatory maneuver room, as well as to ponder permanently the
reasonableness and proportionality of every enforcement measure aimed at
protecting the marine environment of the continental shelf.
48
One can think of arguments against enforcement rights of coastal states on the
continental shelf, particularly based on the blackletter of the Convention. Such an
argument would claim that no explicit provision at UNCLOS recognizes enforcement rights on the continental shelf, as the Convention does on other zones such as
the territorial sea and the EEZ. Concerning the territorial sea, Arts. 25 and 33 allow
coastal states to “take the necessary steps” to prevent passage that is not innocent,
and in the EEZ, Art. 73 crystalizes coastal states’ rights to enforce laws and
regulations. As seen above, the hall of enforcement measures includes boarding,
inspection, arrest, detention and the institution of civil and criminal proceedings, as
may be necessary to ensure compliance with the laws and regulations adopted by it
in conformity with the Convention.
49
Indeed, there is no reference in Part VI to the words “enforce”, “enforcement”,
“take measure”, nor “ensure compliance”, as in the provisions applicable to other
zones. Quite the contrary, Art. 78 (2) UNCLOS restricts coastal state authority that
may unjustifiably interfere with high seas freedoms: “[t]he exercise of the rights of
the coastal State over the continental shelf must not infringe or result in any
unjustifiable interference with navigation and other rights and freedoms of other
States as provided for in this Convention”. According to this view, it would be
inadmissible for a coastal state’s guard vessel to board and inspect a foreign ship
based on claims that it is violating its sovereign rights over continental shelf
resources, unless the foreign vessel would directly interfere with consecrated rights
46 Protocol of 1978 relating to the International Convention for the Prevention of Pollution from
Ships, 1340 UNTS 184, 1978.
47 In the late 1960s, Zdenek Slouka pointed out that the issue of enforcement jurisdiction is one of
considerable legal uncertainty. See Slouka (1968), p. 168.
48 Gavouneli (2014), p. 16.
49 Art. 73 UNCLOS is limited to activities relating to living resources, since the article explicitly
mentions those resources (and excludes the non-living ones). Such a view is confirmed by the
travaux préparatoires of the Convention and the Virginia Commentaries (Vol. II, 794). Art. 73 also
does not apply to enforcement actions over installations and marine scientific research, although
other articles do confer the coastal state such authority.
8.2 Environmental Jurisdiction to Enforce
237
MARPOL Convention, or others, where applicable.
46
Yet, the exercise of enforcement powers by coastal states regarding the continental shelf has not been uncontroversial.
47 The much-praised balance between
coastal and flag state enforcement rights, achieved by UNCLOS, has been put to
test in some occasions, as coastal states have asserted increased powers for environmental purposes in areas within national jurisdiction. Such practices (also described
as “thickening jurisdiction”) are taken by some countries as excessive maritime
claims, what confirms their elevated conflict potential. It is, thus, mandatory for
coastal states with strong marine environmental agendas to be aware of the legal
limits of their regulatory maneuver room, as well as to ponder permanently the
reasonableness and proportionality of every enforcement measure aimed at
protecting the marine environment of the continental shelf.
48
One can think of arguments against enforcement rights of coastal states on the
continental shelf, particularly based on the blackletter of the Convention. Such an
argument would claim that no explicit provision at UNCLOS recognizes enforcement rights on the continental shelf, as the Convention does on other zones such as
the territorial sea and the EEZ. Concerning the territorial sea, Arts. 25 and 33 allow
coastal states to “take the necessary steps” to prevent passage that is not innocent,
and in the EEZ, Art. 73 crystalizes coastal states’ rights to enforce laws and
regulations. As seen above, the hall of enforcement measures includes boarding,
inspection, arrest, detention and the institution of civil and criminal proceedings, as
may be necessary to ensure compliance with the laws and regulations adopted by it
in conformity with the Convention.
49
Indeed, there is no reference in Part VI to the words “enforce”, “enforcement”,
“take measure”, nor “ensure compliance”, as in the provisions applicable to other
zones. Quite the contrary, Art. 78 (2) UNCLOS restricts coastal state authority that
may unjustifiably interfere with high seas freedoms: “[t]he exercise of the rights of
the coastal State over the continental shelf must not infringe or result in any
unjustifiable interference with navigation and other rights and freedoms of other
States as provided for in this Convention”. According to this view, it would be
inadmissible for a coastal state’s guard vessel to board and inspect a foreign ship
based on claims that it is violating its sovereign rights over continental shelf
resources, unless the foreign vessel would directly interfere with consecrated rights
46 Protocol of 1978 relating to the International Convention for the Prevention of Pollution from
Ships, 1340 UNTS 184, 1978.
47 In the late 1960s, Zdenek Slouka pointed out that the issue of enforcement jurisdiction is one of
considerable legal uncertainty. See Slouka (1968), p. 168.
48 Gavouneli (2014), p. 16.
49 Art. 73 UNCLOS is limited to activities relating to living resources, since the article explicitly
mentions those resources (and excludes the non-living ones). Such a view is confirmed by the
travaux préparatoires of the Convention and the Virginia Commentaries (Vol. II, 794). Art. 73 also
does not apply to enforcement actions over installations and marine scientific research, although
other articles do confer the coastal state such authority.
8.2 Environmental Jurisdiction to Enforce
237