upset other states’ rights in the high seas. The most important criteria that coastal
states must obey when exercising such “enlarged” environmental jurisdiction on the
continental shelf, especially beyond 200 nm, are the tripod: reasonability, necessity
and proportionality. In light of those criteria, every coastal state, before prescribing
or enforcing a rule, should meet a number of requirements, so that conflicts be
prevented.
A potentially useful tool is the methodology developed by Joanna Mossop for
coastal states who are looking into environmentally protective measures on their
outer continental shelves, in order to prevent conflicts with other states navigating
the superjacent waters or engaged in some sort of activity in connection with the
seabed.
70 According to Mossop, a coastal state must (i) prove the scientific foundation of the measure, backed by evidences of likely environmental harm; (ii) the value
of the goods to be protected, in terms of conservation impact; (iii) the special
circumstances of each case, such as the parties involved, the economic and social
relevance of the activity to be limited, the costs of finding alternative activities, etc.;
(iv) the degree of proportionality between the good under protection and the
restricted freedom(s); and (v) that the interference with the high seas freedoms is
as minimal as possible.
In practical terms, via employing such a methodology, it is lawful for coastal
states to adopt and enforce several measures on the outer continental shelf, especially
so regarding the protection of living resources thereof. For instance, coastal states
may enact rules and to enforce their sovereign right to explore sedentary species,
such as corals, sponges, clams, crabs, lobsters and scallops on an exclusive basis. A
massive problem is posed by the recent increasing bioprospection and sampling of
sedentary species for industrial screening, practices that makes coastal states’ life
much harder, as cutting-edge technologies—like the environmental genetic screening mentioned supra—allow for the researching state to sample genetic resources of
the continental shelf without interfering with the sedentary species nor touching
upon the seabed. Here, coastal states have the right to establish non-harvest zones on
the outer continental shelf to protect vulnerable marine ecosystems, with access
denial extendable even to scientific research projects.
71
Also, coastal states may refuse permission to marine scientific research if there is
well-founded fear that the research will result in harm to the marine resources,
particularly in the case of by-catch of sedentary species in scientific missions,
which originally aim at non-sedentary species. As rightfully put by Joanna Mossop,
in those occurrences, “coastal state regulations may seek to have an impact on
activities that, strictly speaking, relate to the high-seas regime”.
72
Despite the legal and political sensibility of the situations referred to supra, cases
involving the exercise of enforcement jurisdiction over foreign vessels above the
outer continental shelf are even more delicate. Still, it is possible to read UNCLOS in
70 For more on that methodology, see Mossop (2010), p. 325.
71 Id. 323.
72 Id. 325.
8.2 Environmental Jurisdiction to Enforce
243
states must obey when exercising such “enlarged” environmental jurisdiction on the
continental shelf, especially beyond 200 nm, are the tripod: reasonability, necessity
and proportionality. In light of those criteria, every coastal state, before prescribing
or enforcing a rule, should meet a number of requirements, so that conflicts be
prevented.
A potentially useful tool is the methodology developed by Joanna Mossop for
coastal states who are looking into environmentally protective measures on their
outer continental shelves, in order to prevent conflicts with other states navigating
the superjacent waters or engaged in some sort of activity in connection with the
seabed.
70 According to Mossop, a coastal state must (i) prove the scientific foundation of the measure, backed by evidences of likely environmental harm; (ii) the value
of the goods to be protected, in terms of conservation impact; (iii) the special
circumstances of each case, such as the parties involved, the economic and social
relevance of the activity to be limited, the costs of finding alternative activities, etc.;
(iv) the degree of proportionality between the good under protection and the
restricted freedom(s); and (v) that the interference with the high seas freedoms is
as minimal as possible.
In practical terms, via employing such a methodology, it is lawful for coastal
states to adopt and enforce several measures on the outer continental shelf, especially
so regarding the protection of living resources thereof. For instance, coastal states
may enact rules and to enforce their sovereign right to explore sedentary species,
such as corals, sponges, clams, crabs, lobsters and scallops on an exclusive basis. A
massive problem is posed by the recent increasing bioprospection and sampling of
sedentary species for industrial screening, practices that makes coastal states’ life
much harder, as cutting-edge technologies—like the environmental genetic screening mentioned supra—allow for the researching state to sample genetic resources of
the continental shelf without interfering with the sedentary species nor touching
upon the seabed. Here, coastal states have the right to establish non-harvest zones on
the outer continental shelf to protect vulnerable marine ecosystems, with access
denial extendable even to scientific research projects.
71
Also, coastal states may refuse permission to marine scientific research if there is
well-founded fear that the research will result in harm to the marine resources,
particularly in the case of by-catch of sedentary species in scientific missions,
which originally aim at non-sedentary species. As rightfully put by Joanna Mossop,
in those occurrences, “coastal state regulations may seek to have an impact on
activities that, strictly speaking, relate to the high-seas regime”.
72
Despite the legal and political sensibility of the situations referred to supra, cases
involving the exercise of enforcement jurisdiction over foreign vessels above the
outer continental shelf are even more delicate. Still, it is possible to read UNCLOS in
70 For more on that methodology, see Mossop (2010), p. 325.
71 Id. 323.
72 Id. 325.
8.2 Environmental Jurisdiction to Enforce
243