and under an obligation to comply with Brazilian regulations.
59 Pursuant to Regulatory Decree no. 68.459/1971, which detailed the Decree-Law no. 1098/1970,
enforcement measures were to be exercised by the Ministry of the Navy and included
the arrest of vessels as well as imprisonment of perpetrators—a measure that would
frontally breach current UNCLOS Art. 73 (3), which prohibits the incarceration or
any form of corporal punishments for violation of fisheries laws.
60
Due to their complexity and conflict-creating potential, legal questions
concerning enforcement have made it to international jurisprudence in several
occasions. When it comes to international tribunals’ contribution to the clarification
of the issue in general, and not just related to environmental concerns, the ITLOS has
contributed with valuable inputs. In fact, the Tribunal has decided, for instance, that
the use of force in the law of the sea must be avoided as far as possible, and that
enforcement powers must not go beyond what is reasonable and necessary in the
circumstances, as determined in the M/V Saiga case.
61 In another paradigmatic case,
the Virginia G, the Tribunal decided that coastal states have sovereign rights in their
EEZ to adopt regulations concerning exploration, exploitation, conservation and
management of natural resources, including, inter alia, the right to “take the necessary enforcement measures” for the implementation of national legislation.
According to the decision,
Article 56 of the Convention refers to sovereign rights for the purpose of exploring and
exploiting, conserving and managing natural resources. The term “sovereign rights” in the
view of the Tribunal encompasses all rights necessary for and connected with the exploration, exploitation, conservation and management of the natural resources, including the right
to take the necessary enforcement measures.
62
International jurisprudence has confirmed coastal states’ limited enforcement
powers, as in the emblematic Arctic Sunrise case, which landed at the ITLOS docket
in 2012. The case opposed Netherlands and Russia, following the arrest of
Greenpeace’s vessel “Arctic Sunrise”, flying the Dutch flag, by Russian authorities,
after an alleged violation of Russian sovereignty during a peaceful protest at an oil
rig within the Russian EEZ. Following the arrest, the Dutch initiated a compulsory
procedure before the ITLOS, requesting for provisional measures under Art.
290 (5) UNCLOS, while simultaneously starting arbitral proceedings against
Russia in accordance with Annex VII UNCLOS. Despite Russia’s “no show” in
both procedures, a conduct heavily criticized in the international sphere, the ITLOS
found that enough evidence supported the granting of provisional measures to
immediately release the vessel and its crew, upon the posting of a bond by the
Dutch government.
63 Subsequently, and the arbitral tribunal found that the Russian
59 Art. 4, paragraph 2, Decree-Law no. 1098/1970.
60 Art. 11, paragraph 3, Regulatory Decree no. 68.459/1971, Brazil.
61 ITLOS, The M/V Saiga (Saint Vincent and the Grenadines v. Guinea), Prompt release, Judgment,
ITLOS Reports 1997, at 16, para 155.
62 Id. The Virginia G case, para 211.
63 Id. The Artic Sunrise case, para 105 (1) (a).
240
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .
59 Pursuant to Regulatory Decree no. 68.459/1971, which detailed the Decree-Law no. 1098/1970,
enforcement measures were to be exercised by the Ministry of the Navy and included
the arrest of vessels as well as imprisonment of perpetrators—a measure that would
frontally breach current UNCLOS Art. 73 (3), which prohibits the incarceration or
any form of corporal punishments for violation of fisheries laws.
60
Due to their complexity and conflict-creating potential, legal questions
concerning enforcement have made it to international jurisprudence in several
occasions. When it comes to international tribunals’ contribution to the clarification
of the issue in general, and not just related to environmental concerns, the ITLOS has
contributed with valuable inputs. In fact, the Tribunal has decided, for instance, that
the use of force in the law of the sea must be avoided as far as possible, and that
enforcement powers must not go beyond what is reasonable and necessary in the
circumstances, as determined in the M/V Saiga case.
61 In another paradigmatic case,
the Virginia G, the Tribunal decided that coastal states have sovereign rights in their
EEZ to adopt regulations concerning exploration, exploitation, conservation and
management of natural resources, including, inter alia, the right to “take the necessary enforcement measures” for the implementation of national legislation.
According to the decision,
Article 56 of the Convention refers to sovereign rights for the purpose of exploring and
exploiting, conserving and managing natural resources. The term “sovereign rights” in the
view of the Tribunal encompasses all rights necessary for and connected with the exploration, exploitation, conservation and management of the natural resources, including the right
to take the necessary enforcement measures.
62
International jurisprudence has confirmed coastal states’ limited enforcement
powers, as in the emblematic Arctic Sunrise case, which landed at the ITLOS docket
in 2012. The case opposed Netherlands and Russia, following the arrest of
Greenpeace’s vessel “Arctic Sunrise”, flying the Dutch flag, by Russian authorities,
after an alleged violation of Russian sovereignty during a peaceful protest at an oil
rig within the Russian EEZ. Following the arrest, the Dutch initiated a compulsory
procedure before the ITLOS, requesting for provisional measures under Art.
290 (5) UNCLOS, while simultaneously starting arbitral proceedings against
Russia in accordance with Annex VII UNCLOS. Despite Russia’s “no show” in
both procedures, a conduct heavily criticized in the international sphere, the ITLOS
found that enough evidence supported the granting of provisional measures to
immediately release the vessel and its crew, upon the posting of a bond by the
Dutch government.
63 Subsequently, and the arbitral tribunal found that the Russian
59 Art. 4, paragraph 2, Decree-Law no. 1098/1970.
60 Art. 11, paragraph 3, Regulatory Decree no. 68.459/1971, Brazil.
61 ITLOS, The M/V Saiga (Saint Vincent and the Grenadines v. Guinea), Prompt release, Judgment,
ITLOS Reports 1997, at 16, para 155.
62 Id. The Virginia G case, para 211.
63 Id. The Artic Sunrise case, para 105 (1) (a).
240
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .