of the coastal state. Indirect interference would not allow for such a drastic measure
by the coastal state.
In spite of that blackletter argument against enforcement powers, there are
arguments in abundance in favor of an enforcement jurisdiction of the coastal
state. Firstly, wherever the continental shelf length matches the EEZ of a state, the
rule of enforcement contained in Art. 73 supra applies to ships engaged in or
interfering with seabed activities. With regard to enforcement powers over foreign
vessels in the waters above the outer continental shelf, coastal states may exercise
authority in some circumstances, a detailed examination of which will follow suit.
Another argument pro-enforcement was formulated by the ILC commentaries to
the 1958 CSC, designed to give clarity to that Convention’s ambiguity concerning
coastal states’ prerogative to exercise control over continental shelf activities. In that
document, coastal states are conferred “all rights necessary for and connected with
the exploration and exploitation of the natural resources of the continental shelf.
Such rights include jurisdiction in connection with the prevention and punishment of
violations of the law” (emphasis added).
50 In other words, the Commission has
recognized civil and criminal, prescriptive and enforcement jurisdiction to coastal
states for the regulation of the exploration of the continental shelf and exploitation of
its resources.
Despite the ambiguity of the 1958 CSC, it has been suggested that, as a matter of
analogy, the Convention on the Territorial Sea and the Contiguous Zone, of the same
year, recognized coastal states control powers to prevent violations of their rights.
Here, the definition of “control” consists of two elements, one of prevention and
another of punishment. In the opinion of Edward Brown, for the purpose of
prevention, “control means a power rather than a right to stop and search vessels
in the Contiguous Zone but not to arrest them or escort them to the port”. For the
purpose of punishment, “control means the power to arrest vessels in the contiguous
zone and take them into port for proceedings under its penal legislation”.
51 Such an
interpretation prioritizes the effective achievement of coastal states’ sovereign rights
and functional jurisdiction over the continental shelf, without extending such rights
ratione loci to the superjacent waters. As rightfully noted by Brown, “a limited
degree of jurisdiction and control over foreign vessels on the high seas above the
shelf must be admitted”.
52
All in all, the right to implement domestic laws and regulation in areas of national
jurisdiction exists and is protected by international law. The exercise of such rights,
however, is subject to the obligation of due regard when taking measures, both to
manage and conserve biodiversity and to prevent, reduce and control marine pollution, so Arts. 78 and 194 (4) UNCLOS. In fact, the Convention expressly prohibits
“unjustifiable interferences” to the rights and freedoms of other states in the maritime
spaces under coastal states’ national jurisdiction and calls for a reasonable balancing
50 ILC (1956), p. 297.
51 Brown (1973), p. 95.
52 Id. 94.
238
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .
by the coastal state.
In spite of that blackletter argument against enforcement powers, there are
arguments in abundance in favor of an enforcement jurisdiction of the coastal
state. Firstly, wherever the continental shelf length matches the EEZ of a state, the
rule of enforcement contained in Art. 73 supra applies to ships engaged in or
interfering with seabed activities. With regard to enforcement powers over foreign
vessels in the waters above the outer continental shelf, coastal states may exercise
authority in some circumstances, a detailed examination of which will follow suit.
Another argument pro-enforcement was formulated by the ILC commentaries to
the 1958 CSC, designed to give clarity to that Convention’s ambiguity concerning
coastal states’ prerogative to exercise control over continental shelf activities. In that
document, coastal states are conferred “all rights necessary for and connected with
the exploration and exploitation of the natural resources of the continental shelf.
Such rights include jurisdiction in connection with the prevention and punishment of
violations of the law” (emphasis added).
50 In other words, the Commission has
recognized civil and criminal, prescriptive and enforcement jurisdiction to coastal
states for the regulation of the exploration of the continental shelf and exploitation of
its resources.
Despite the ambiguity of the 1958 CSC, it has been suggested that, as a matter of
analogy, the Convention on the Territorial Sea and the Contiguous Zone, of the same
year, recognized coastal states control powers to prevent violations of their rights.
Here, the definition of “control” consists of two elements, one of prevention and
another of punishment. In the opinion of Edward Brown, for the purpose of
prevention, “control means a power rather than a right to stop and search vessels
in the Contiguous Zone but not to arrest them or escort them to the port”. For the
purpose of punishment, “control means the power to arrest vessels in the contiguous
zone and take them into port for proceedings under its penal legislation”.
51 Such an
interpretation prioritizes the effective achievement of coastal states’ sovereign rights
and functional jurisdiction over the continental shelf, without extending such rights
ratione loci to the superjacent waters. As rightfully noted by Brown, “a limited
degree of jurisdiction and control over foreign vessels on the high seas above the
shelf must be admitted”.
52
All in all, the right to implement domestic laws and regulation in areas of national
jurisdiction exists and is protected by international law. The exercise of such rights,
however, is subject to the obligation of due regard when taking measures, both to
manage and conserve biodiversity and to prevent, reduce and control marine pollution, so Arts. 78 and 194 (4) UNCLOS. In fact, the Convention expressly prohibits
“unjustifiable interferences” to the rights and freedoms of other states in the maritime
spaces under coastal states’ national jurisdiction and calls for a reasonable balancing
50 ILC (1956), p. 297.
51 Brown (1973), p. 95.
52 Id. 94.
238
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .