Knowing that coastal states have discretion to specify the nature of the MPAs,
whether entirely restrictive or allowing for the sustainable use of marine resources,
the CBD Secretariat has insisted on organizing workshops to help states identify
fragile marine ecosystems and ecologically significant marine areas (EBSA).
Within the realm of the law of the sea, such conservation measures are reinforced
by pioneering provisions contained in UNCLOS, even though the Convention
refrains from explicitly referring to “protected areas”. Indeed, and pursuant to Art.
194 (5), “measures taken in accordance with this Part [XII] shall include those
necessary to protect and preserve rare or fragile ecosystems as well as the habitat
of depleted, threatened or endangered species and other forms of marine life”.
32 That
provision—which hints towards an “ecosystem approach” within UNCLOS—offers
coastal states the necessary legal ground for exercising environmental prescriptive
jurisdiction on their continental shelves.
Fact of great concern by coastal states is vessel-source pollution of ecologically
sensitive marine areas, such as shallow coral reefs of deep-water cold corals. In that
regard, it can be said that coastal states’ power to pursue conservation strategies for
shallow-water ecosystems, such as coral reefs, is relatively unconstrained by
UNCLOS.
33 However, “obstacles posed by the freedoms of other states in marine
waters do become more testing for coastal states as they move away from their
baselines”, as it is the case with the EEZ.
34 Prescriptive environmental jurisdiction in
these cases is restricted by observation by foreign ship of internationally agreed
standards. And if imposing limitations on navigation or other freedoms of the high
seas is difficult in maritime zones where coastal states are entitled to clear environmental jurisdiction, let alone on outer continental shelves.
Enforcement jurisdiction on environment-related grounds are dealt with by Arts.
211 and 220 UNCLOS. The former concerns vessel-source pollution, which is likely
to harm the overall health of marine life within a given coastal state’s jurisdiction, on
the other hand, is handled by Art. 211 (5) UNCLOS. According to that provision,
Coastal States, for the purpose of enforcement as provided for in section 6, may in respect of
their exclusive economic zones adopt laws and regulations for the prevention, reduction and
control of pollution from vessels conforming to and giving effect to generally accepted
international rules and standards established through the competent international organization or general diplomatic conference.
Such wording established a stricter threshold for coastal states to designate MPAs
to prevent, reduce and control pollution from vessels, and to enforce environmental
laws and regulations against transit vessels beyond their territorial seas, i.e. in the
EEZ. This clause represents per se a major safeguard of freedom of navigation and
an attempt to balance coastal states’ environmental jurisdiction and the rightful
exercise of navigation freedom by other states. In addition to that, UNCLOS Art.
211 (6) stipulates a complex system for designating MPAs in the EEZ, which
32 Art. 194, paragraph 5 UNCLOS.
33 Goodwin (2011), p. 54.
34 Id. 54.
306
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
whether entirely restrictive or allowing for the sustainable use of marine resources,
the CBD Secretariat has insisted on organizing workshops to help states identify
fragile marine ecosystems and ecologically significant marine areas (EBSA).
Within the realm of the law of the sea, such conservation measures are reinforced
by pioneering provisions contained in UNCLOS, even though the Convention
refrains from explicitly referring to “protected areas”. Indeed, and pursuant to Art.
194 (5), “measures taken in accordance with this Part [XII] shall include those
necessary to protect and preserve rare or fragile ecosystems as well as the habitat
of depleted, threatened or endangered species and other forms of marine life”.
32 That
provision—which hints towards an “ecosystem approach” within UNCLOS—offers
coastal states the necessary legal ground for exercising environmental prescriptive
jurisdiction on their continental shelves.
Fact of great concern by coastal states is vessel-source pollution of ecologically
sensitive marine areas, such as shallow coral reefs of deep-water cold corals. In that
regard, it can be said that coastal states’ power to pursue conservation strategies for
shallow-water ecosystems, such as coral reefs, is relatively unconstrained by
UNCLOS.
33 However, “obstacles posed by the freedoms of other states in marine
waters do become more testing for coastal states as they move away from their
baselines”, as it is the case with the EEZ.
34 Prescriptive environmental jurisdiction in
these cases is restricted by observation by foreign ship of internationally agreed
standards. And if imposing limitations on navigation or other freedoms of the high
seas is difficult in maritime zones where coastal states are entitled to clear environmental jurisdiction, let alone on outer continental shelves.
Enforcement jurisdiction on environment-related grounds are dealt with by Arts.
211 and 220 UNCLOS. The former concerns vessel-source pollution, which is likely
to harm the overall health of marine life within a given coastal state’s jurisdiction, on
the other hand, is handled by Art. 211 (5) UNCLOS. According to that provision,
Coastal States, for the purpose of enforcement as provided for in section 6, may in respect of
their exclusive economic zones adopt laws and regulations for the prevention, reduction and
control of pollution from vessels conforming to and giving effect to generally accepted
international rules and standards established through the competent international organization or general diplomatic conference.
Such wording established a stricter threshold for coastal states to designate MPAs
to prevent, reduce and control pollution from vessels, and to enforce environmental
laws and regulations against transit vessels beyond their territorial seas, i.e. in the
EEZ. This clause represents per se a major safeguard of freedom of navigation and
an attempt to balance coastal states’ environmental jurisdiction and the rightful
exercise of navigation freedom by other states. In addition to that, UNCLOS Art.
211 (6) stipulates a complex system for designating MPAs in the EEZ, which
32 Art. 194, paragraph 5 UNCLOS.
33 Goodwin (2011), p. 54.
34 Id. 54.
306
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...