of interests between conflicting interests. At the end of the day, the measures taken
must not be disproportionate to the protection of the interests at stake nor hurt the
freedom of other states in an unnecessary way. Such criterion (of not interfering with
other rights in an unjustifiable manner) has been considered vague, but according to
Joanna Mossop it is “all there is”.
53 Hence, border-line cases involving environmental measures with interfering potential may only be evaluated on a casuistic
basis, so as to assess whether the measures were justified or not. Despite of the
conflictive potential of environmental measures in zones of functional jurisdiction,
such as the EEZ and the continental shelf, “a rebuttable presumption of competency
in favor of the coastal state should be applied”.
54
The limited state practice under the 1958 CSC confirmed the view that coastal
states claimed enforcement jurisdiction over activities directed at living and
non-living resources of the continental shelf.
55 The United States, despite having a
domestic law acknowledging enforcement jurisdiction over foreign vessels fishing
for sedentary species on the continental shelf, has preferred not to seize any foreign
ships for doing so—not a single one had been seized by 1974. The Soviet Union and
Australia also had provisions on enforcement powers in national legislations, powers
considered legal and reasonable due to their connection with the right to control
sedentary species of the continental shelf.
56
To refer to the case study of this work, Brazilian enforcement powers in superjacent waters of the continental shelf were implicit in national legislation.
57 Of
particular relevance for that time were the Decree-Law no. 44/1966, signed during
the military regime, which enlarged the limits of the Brazilian territorial sea from 3 to
6 nm, apart from creating a contiguous zone of extra 6 nm, where the country
exercised exclusive fishing rights.
58 That decree was to be “enforced accordingly”,
so the original Portuguese text—Art. 4 Decree-Law no. 44. In addition to that,
Decree-Law no. 553/1969, Art. 2, extended the Brazilian territorial sea to 12 nm
and contained a provision on enforcement identical to the previous Decree-Law
no. 44.
The later Decree-Law no. 1.098/1970, declaring a territorial sea of 200 nm in
length, determined that foreign vessels must respect domestic regulations aimed at
preventing water pollution and damage to marine resources within the 200-nm zone,
so Art. 3 (2). Likewise, the Statute stipulated that foreign vessels fishing within areas
allowed by the legislation could only carry out their activities when duly registered
53 Mossop (2013), p. 193.
54 Czybulka (2017), p. 1309, mn 28.
55 Mossop (2016), p. 208.
56 For details on national legislations of the United States, Australia and the Soviet Union, id. 208.
57 Brazilian legislation analyzed includes: Decree 28.840/1950, which declared the “submarine
shelf” an integral part of the national territory and subject to the jurisdiction of the Federal State;
the 1967 Federal Constitution, which included the “submarine shelf” as property of the Federal
State. A detailed study on those laws follows in Chaps. 9 and 10.
58 Arts. 2 and 3, Decree-Law no. 44, 18 November 1966.
8.2 Environmental Jurisdiction to Enforce
239
must not be disproportionate to the protection of the interests at stake nor hurt the
freedom of other states in an unnecessary way. Such criterion (of not interfering with
other rights in an unjustifiable manner) has been considered vague, but according to
Joanna Mossop it is “all there is”.
53 Hence, border-line cases involving environmental measures with interfering potential may only be evaluated on a casuistic
basis, so as to assess whether the measures were justified or not. Despite of the
conflictive potential of environmental measures in zones of functional jurisdiction,
such as the EEZ and the continental shelf, “a rebuttable presumption of competency
in favor of the coastal state should be applied”.
54
The limited state practice under the 1958 CSC confirmed the view that coastal
states claimed enforcement jurisdiction over activities directed at living and
non-living resources of the continental shelf.
55 The United States, despite having a
domestic law acknowledging enforcement jurisdiction over foreign vessels fishing
for sedentary species on the continental shelf, has preferred not to seize any foreign
ships for doing so—not a single one had been seized by 1974. The Soviet Union and
Australia also had provisions on enforcement powers in national legislations, powers
considered legal and reasonable due to their connection with the right to control
sedentary species of the continental shelf.
56
To refer to the case study of this work, Brazilian enforcement powers in superjacent waters of the continental shelf were implicit in national legislation.
57 Of
particular relevance for that time were the Decree-Law no. 44/1966, signed during
the military regime, which enlarged the limits of the Brazilian territorial sea from 3 to
6 nm, apart from creating a contiguous zone of extra 6 nm, where the country
exercised exclusive fishing rights.
58 That decree was to be “enforced accordingly”,
so the original Portuguese text—Art. 4 Decree-Law no. 44. In addition to that,
Decree-Law no. 553/1969, Art. 2, extended the Brazilian territorial sea to 12 nm
and contained a provision on enforcement identical to the previous Decree-Law
no. 44.
The later Decree-Law no. 1.098/1970, declaring a territorial sea of 200 nm in
length, determined that foreign vessels must respect domestic regulations aimed at
preventing water pollution and damage to marine resources within the 200-nm zone,
so Art. 3 (2). Likewise, the Statute stipulated that foreign vessels fishing within areas
allowed by the legislation could only carry out their activities when duly registered
53 Mossop (2013), p. 193.
54 Czybulka (2017), p. 1309, mn 28.
55 Mossop (2016), p. 208.
56 For details on national legislations of the United States, Australia and the Soviet Union, id. 208.
57 Brazilian legislation analyzed includes: Decree 28.840/1950, which declared the “submarine
shelf” an integral part of the national territory and subject to the jurisdiction of the Federal State;
the 1967 Federal Constitution, which included the “submarine shelf” as property of the Federal
State. A detailed study on those laws follows in Chaps. 9 and 10.
58 Arts. 2 and 3, Decree-Law no. 44, 18 November 1966.
8.2 Environmental Jurisdiction to Enforce
239