reasonable to interpret the Convention as granting enforcement powers for the
implementation of, at least, those two purposes. Yet, there is more to that story
than a quick reading of UNCLOS could suggest, namely with respect to the
environmental enforcement powers over the management and conservation of living
resources of the continental shelf beyond 200 nm. As long as living resources
abound within the jurisdiction of the coastal state, there is municipal environmental
jurisdiction to manage and conserve those resources—a thesis advanced previously
in this work, and contrary to what a literal reading of UNCLOS would suggest.
Traditionally, law of the sea scholars have focused on the aspect of obligation to
manage and conserve living resources of the continental shelf, so as to conclude that
coastal states “are not subject to the obligation to conserve them”, thus claiming that
the Convention’s “exclusive focus on exploitation is also reflected in the key role
accorded to the words ‘harvestable stage’ in the definition of sedentary species”.
23
For Erik Molenaar, the wording of the Convention in ineluctable, though “defective”
it may be for marine international environmental conservation efforts, with Part XII
of UNCLOS doing little to resolve that defect.
The main argument of this work is that the question of conservation powers of
coastal states in areas within national jurisdiction can be framed from the perspective
of rights, and not just obligations, thus according coastal states the right to manage
the deep-sea species of the continental shelf. Besides, the conservation of marine
living resources is equally mandated by international binding instruments dealing
with the preservation of biological diversity.
24 It is the case of the CBD and CITES
(for the states simultaneously parties to them and UNCLOS), treaties with a clearer
environmental scope than UNCLOS and which impose ecological obligations that
can be interpreted as concerning sedentary species too.
25 Hence, “failure by parties
to abide by conservation measures in those treaties may result in breach of international obligations of protect and conserve the marine environment, thus giving rise to
international legal responsibility for environmental harm”.
26
The material extent of coastal states’ environmental powers over continental shelf
activities is not to be underestimated. Marta Chantal Ribeiro, for instance, is of the
view that in cases of illegal fishing of sedentary species of the continental shelf
within beyond 200 nm, regardless of who practices it, the coastal state is legitimated
to act unilaterally.
27 In other words, coastal states were given (by UNCLOS)
23 Molenaar (2007), p. 117.
24 This view is shared by Wolfrum (2000), p. 251.
25 Such position may be countered as being grounded on rather fragile arguments, as, it could be
said, UNCLOS would rule out the application of Part V to sedentary species (while at the same time
calling to coastal states to protect and preserve the marine environment under national jurisdiction);
or that UNCLOS has priority over the CDB (Art. 22 CBD and Art. 311 UNCLOS)—which is true,
but does not rule out resort to the CBD for matters related to marine biodiversity conservation.
Those and other arguments have been countered previously in this book.
26 See Nelson (2010) para 24.
27 Ribeiro (2015), p. 63. In that view, the Portuguese scholar joins Owen and Chambers
(2006), p. 40.
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10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
implementation of, at least, those two purposes. Yet, there is more to that story
than a quick reading of UNCLOS could suggest, namely with respect to the
environmental enforcement powers over the management and conservation of living
resources of the continental shelf beyond 200 nm. As long as living resources
abound within the jurisdiction of the coastal state, there is municipal environmental
jurisdiction to manage and conserve those resources—a thesis advanced previously
in this work, and contrary to what a literal reading of UNCLOS would suggest.
Traditionally, law of the sea scholars have focused on the aspect of obligation to
manage and conserve living resources of the continental shelf, so as to conclude that
coastal states “are not subject to the obligation to conserve them”, thus claiming that
the Convention’s “exclusive focus on exploitation is also reflected in the key role
accorded to the words ‘harvestable stage’ in the definition of sedentary species”.
23
For Erik Molenaar, the wording of the Convention in ineluctable, though “defective”
it may be for marine international environmental conservation efforts, with Part XII
of UNCLOS doing little to resolve that defect.
The main argument of this work is that the question of conservation powers of
coastal states in areas within national jurisdiction can be framed from the perspective
of rights, and not just obligations, thus according coastal states the right to manage
the deep-sea species of the continental shelf. Besides, the conservation of marine
living resources is equally mandated by international binding instruments dealing
with the preservation of biological diversity.
24 It is the case of the CBD and CITES
(for the states simultaneously parties to them and UNCLOS), treaties with a clearer
environmental scope than UNCLOS and which impose ecological obligations that
can be interpreted as concerning sedentary species too.
25 Hence, “failure by parties
to abide by conservation measures in those treaties may result in breach of international obligations of protect and conserve the marine environment, thus giving rise to
international legal responsibility for environmental harm”.
26
The material extent of coastal states’ environmental powers over continental shelf
activities is not to be underestimated. Marta Chantal Ribeiro, for instance, is of the
view that in cases of illegal fishing of sedentary species of the continental shelf
within beyond 200 nm, regardless of who practices it, the coastal state is legitimated
to act unilaterally.
27 In other words, coastal states were given (by UNCLOS)
23 Molenaar (2007), p. 117.
24 This view is shared by Wolfrum (2000), p. 251.
25 Such position may be countered as being grounded on rather fragile arguments, as, it could be
said, UNCLOS would rule out the application of Part V to sedentary species (while at the same time
calling to coastal states to protect and preserve the marine environment under national jurisdiction);
or that UNCLOS has priority over the CDB (Art. 22 CBD and Art. 311 UNCLOS)—which is true,
but does not rule out resort to the CBD for matters related to marine biodiversity conservation.
Those and other arguments have been countered previously in this book.
26 See Nelson (2010) para 24.
27 Ribeiro (2015), p. 63. In that view, the Portuguese scholar joins Owen and Chambers
(2006), p. 40.
304
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...