involve long consultations with affected flag states and resort to scientifically proven
ecological and oceanographical conditions, a system which aims to safeguard
navigation and other lawful uses of the ocean in the EEZ where coastal state wish
to designate MPAs. The strictness of requirements under 211 (6) explain why not a
single MPA has been designed in accordance with such provision up to now.
35
Art. 220, on its turn, provides for coastal states’ enforcement jurisdiction, which
may not use excessive enforcement powers against vessels uncomplying protective
measures established for an MPA within the EEZ. The wording of Art. 220 (6) is
crystal clear:
Where there is clear objective evidence that a vessel navigating in the exclusive economic
zone or the territorial sea of a State has, in the exclusive economic zone, committed a
violation referred to in paragraph 3 resulting in a discharge causing major damage or threat
of major damage to the coastline or related interests of the coastal State, or to any resources
of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided
that the evidence so warrants, institute proceedings, including detention of the vessel, in
accordance with its laws.
Such a possibility of coastal states unilaterally establishing marine protected areas
and enforcing national rules thereon raises issues on the traditional clash between
freedoms of navigation and the right to protect and preserve the marine environment—thoroughly explored throughout this work. In this regard, Rainer Lagoni,
once Professor at this University of Hamburg, is of the view that “the coastal State
has no freewheeling jurisdiction to designate such areas [MPAs] unilaterally and to
adopt binding measures vis-á-vis other States” in the EEZ. Lagoni goes a step further
and claims that, given that area-based tools shall not affect other lawful uses of the
oceans, any measure that affects navigation outside internal waters “can only be
introduced with the agreement of IMO”.
36 The author distinguishes between the
obligation to prevent vessel-source pollution and the general obligation to protect
marine ecosystems and habitats and considers Art. 194 (5) to provide a separate and
independent obligation. This rationale is key to the author’s conclusion that coastal
states have (very) limited powers to establish MPAs for the purpose of protection of
marine ecosystems and habitats beyond its internal waters.
37 Lagoni’s radical conclusions, which disregard coastal states’ environmental powers over both their
35 Alternatives to classical MPAs under article 221 (6) are the Particularly Sensitive Sea Areas
(PSSAs), relating to areas vulnerable to damage by maritime activities, as regulated by the 2005
IMO Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas.
Overall, PSSAs offer a greater variety of measures to be adopted by the coastal State, but they do not
apply to the seafloor. The designation of a PSSA “can affect navigation only by measures which are
compatible with the Convention”. See IMO, Resolution A.982(24), 01 December 2005. Such
PSSAs, which can also be established over the continental shelf of coastal states, is praised as
area-based management tools that have seen impressive use in the part years. One of the reasons for
such success would allegedly be the PSSA’s flexibility and lack of specific legal basis. See
Gavouneli (2014), p. 20.
36 Lagoni (2003), p. 167.
37 Id. 160.
10.1 How Far May Brazil Go?
307
ecological and oceanographical conditions, a system which aims to safeguard
navigation and other lawful uses of the ocean in the EEZ where coastal state wish
to designate MPAs. The strictness of requirements under 211 (6) explain why not a
single MPA has been designed in accordance with such provision up to now.
35
Art. 220, on its turn, provides for coastal states’ enforcement jurisdiction, which
may not use excessive enforcement powers against vessels uncomplying protective
measures established for an MPA within the EEZ. The wording of Art. 220 (6) is
crystal clear:
Where there is clear objective evidence that a vessel navigating in the exclusive economic
zone or the territorial sea of a State has, in the exclusive economic zone, committed a
violation referred to in paragraph 3 resulting in a discharge causing major damage or threat
of major damage to the coastline or related interests of the coastal State, or to any resources
of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided
that the evidence so warrants, institute proceedings, including detention of the vessel, in
accordance with its laws.
Such a possibility of coastal states unilaterally establishing marine protected areas
and enforcing national rules thereon raises issues on the traditional clash between
freedoms of navigation and the right to protect and preserve the marine environment—thoroughly explored throughout this work. In this regard, Rainer Lagoni,
once Professor at this University of Hamburg, is of the view that “the coastal State
has no freewheeling jurisdiction to designate such areas [MPAs] unilaterally and to
adopt binding measures vis-á-vis other States” in the EEZ. Lagoni goes a step further
and claims that, given that area-based tools shall not affect other lawful uses of the
oceans, any measure that affects navigation outside internal waters “can only be
introduced with the agreement of IMO”.
36 The author distinguishes between the
obligation to prevent vessel-source pollution and the general obligation to protect
marine ecosystems and habitats and considers Art. 194 (5) to provide a separate and
independent obligation. This rationale is key to the author’s conclusion that coastal
states have (very) limited powers to establish MPAs for the purpose of protection of
marine ecosystems and habitats beyond its internal waters.
37 Lagoni’s radical conclusions, which disregard coastal states’ environmental powers over both their
35 Alternatives to classical MPAs under article 221 (6) are the Particularly Sensitive Sea Areas
(PSSAs), relating to areas vulnerable to damage by maritime activities, as regulated by the 2005
IMO Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas.
Overall, PSSAs offer a greater variety of measures to be adopted by the coastal State, but they do not
apply to the seafloor. The designation of a PSSA “can affect navigation only by measures which are
compatible with the Convention”. See IMO, Resolution A.982(24), 01 December 2005. Such
PSSAs, which can also be established over the continental shelf of coastal states, is praised as
area-based management tools that have seen impressive use in the part years. One of the reasons for
such success would allegedly be the PSSA’s flexibility and lack of specific legal basis. See
Gavouneli (2014), p. 20.
36 Lagoni (2003), p. 167.
37 Id. 160.
10.1 How Far May Brazil Go?
307