no evidence that, at the time of detention, the vessel was unjustifiably interfering
with the operation of the platform, and enforcement jurisdiction may only be
exercised provided there is threat of undue interference with a coastal state’s
sovereign rights over the continental shelf.
The Arbitral Tribunal’s adding of a temporal element to qualify the right to
enforce national laws by the coastal states seems to have created yet another legal
conflict with the Convention. The Tribunal’s view seems to severely restrict the
power of the coastal state to actually exercise its enforcement rights against foreign
vessels engaged in breaches to domestic laws and regulations. In this sense, the
Tribunal went a tick too far and may have created an enormous barrier to the exercise
of enforcement jurisdiction by coastal states. The decision has faced criticism by the
specialized literature, to whom the interpretation given by the Tribunal to Art.
73 UNCLOS restricts coastal states’ enforcement rights “in such a way would be a
serious limitation on the ability of a coastal State to protect its rights and does not
reflect the reality of enforcement in remote parts of the ocean”.
69 In this sense, a
reasonable and dogmatic interpretation of the Convention would acknowledge
coastal states enforcement rights, even over violations which occurred in the
recent past.
Existing case law has centered, thus far, on the exercise of jurisdiction in the EEZ
and not on the continental shelf. Nevertheless, the decisions have to a lesser or
greater extent confirmed coastal state’s prescriptive and enforcement jurisdiction in
the EEZ. Given the existing parallelism between the Zone and the continental shelf,
it is logical de deduce that coastal states also enjoy prescriptive and implementing
powers on the continental shelf, as mentioned supra. A most delicate part of a study
on coastal state environmental jurisdiction on the continental shelf surfaces once one
looks at the portion of the seabed extending beyond 200 nm from the baselines.
Hence, coastal states must exercise environmental jurisdiction over the outer shelf
with due regard to the rights and freedoms of other states and respecting the high seas
status of the superjacent waters. They are expected to exercise environmental powers
within the material limits of Art. 78 UNCLOS (“must not infringe or result in any
unjustifiable interference” with navigation and other rights of other states). Yet,
“unjustifiable” is a term passive of different interpretations, especially as time passes
and new values inspire the international community. When France, Spain and
Portugal decided to unilaterally ban the access of single-hull tankers from their
EEZ, such a measure was considered by many as “unjustifiable” at the time, but
certainly is not so nowadays. Thus, borderline cases in which coastal states restrain
rights and freedoms of high seas of other states, while exercising environmental
jurisdiction above the outer continental shelf a should be analyzed on a case-by-case
basis.
There may be occasions, however, when coastal states’ interests in protecting
living resources and habitats of the outer continental shelf are provenly significant.
In those situations, coastal states may adopt rules and enforcement measures that
69 This criticism, which this work sides with, is formulated by Mossop (2016), p. 214.
242
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .
with the operation of the platform, and enforcement jurisdiction may only be
exercised provided there is threat of undue interference with a coastal state’s
sovereign rights over the continental shelf.
The Arbitral Tribunal’s adding of a temporal element to qualify the right to
enforce national laws by the coastal states seems to have created yet another legal
conflict with the Convention. The Tribunal’s view seems to severely restrict the
power of the coastal state to actually exercise its enforcement rights against foreign
vessels engaged in breaches to domestic laws and regulations. In this sense, the
Tribunal went a tick too far and may have created an enormous barrier to the exercise
of enforcement jurisdiction by coastal states. The decision has faced criticism by the
specialized literature, to whom the interpretation given by the Tribunal to Art.
73 UNCLOS restricts coastal states’ enforcement rights “in such a way would be a
serious limitation on the ability of a coastal State to protect its rights and does not
reflect the reality of enforcement in remote parts of the ocean”.
69 In this sense, a
reasonable and dogmatic interpretation of the Convention would acknowledge
coastal states enforcement rights, even over violations which occurred in the
recent past.
Existing case law has centered, thus far, on the exercise of jurisdiction in the EEZ
and not on the continental shelf. Nevertheless, the decisions have to a lesser or
greater extent confirmed coastal state’s prescriptive and enforcement jurisdiction in
the EEZ. Given the existing parallelism between the Zone and the continental shelf,
it is logical de deduce that coastal states also enjoy prescriptive and implementing
powers on the continental shelf, as mentioned supra. A most delicate part of a study
on coastal state environmental jurisdiction on the continental shelf surfaces once one
looks at the portion of the seabed extending beyond 200 nm from the baselines.
Hence, coastal states must exercise environmental jurisdiction over the outer shelf
with due regard to the rights and freedoms of other states and respecting the high seas
status of the superjacent waters. They are expected to exercise environmental powers
within the material limits of Art. 78 UNCLOS (“must not infringe or result in any
unjustifiable interference” with navigation and other rights of other states). Yet,
“unjustifiable” is a term passive of different interpretations, especially as time passes
and new values inspire the international community. When France, Spain and
Portugal decided to unilaterally ban the access of single-hull tankers from their
EEZ, such a measure was considered by many as “unjustifiable” at the time, but
certainly is not so nowadays. Thus, borderline cases in which coastal states restrain
rights and freedoms of high seas of other states, while exercising environmental
jurisdiction above the outer continental shelf a should be analyzed on a case-by-case
basis.
There may be occasions, however, when coastal states’ interests in protecting
living resources and habitats of the outer continental shelf are provenly significant.
In those situations, coastal states may adopt rules and enforcement measures that
69 This criticism, which this work sides with, is formulated by Mossop (2016), p. 214.
242
8 Material Extent of Coastal States’ Environmental Jurisdiction on the. . .