territorial seas are countered throughout this work, especially if one considers coastal
states’ environmental jurisdiction over their territorial seas and EEZ.
In fact, coastal states are allowed to designate, among others, a zone de protection
écologique on their continental shelves. Nonetheless, only inasmuch as this zone do
not infringe upon or result in an unjustifiable interference with the rights and
freedoms of other states in the high seas above the shelf—Art. 78 (2) UNCLOS.
By declaring such a zone, coastal states may limit freedom to fish in the high seas, as
in the case of bottom-trawling. Yet, states are expected to adopt a pragmatic
approach, i.e. to assess the relevance and environmental status of what needs formal
and material protection. It is a priority to ascertain, scientifically, whether existing
MPAs cover a number and extent of significant species and habitats by their
uniqueness and sufficiently representative. Only so will coastal states avoid the
trap of declaring ill-suited MPAs or protecting areas where little imminent risks or
threats exist.
Coastal states may, thus, legislate domestically to designate MPAs and adopt
measures to enforce such legislation. That is not only a right, but also an international obligation. The right to do so stems from the very nature of those area-based
management tools: protecting and preserving the marine environment. As shown
supra, coastal State’s jurisdiction on the continental shelf include the adoption of
measures towards marine ecosystems’ protection. It is also an obligation, given the
entry into force of Conventions and Agreements that rely on the establishment of
networks of MPAs worldwide, so as to protect representative areas of the ecological
regions and areas of particular relevance in terms of biological diversity. However,
there exists great difference between designating area-based protective measures in
the EEZ and on the continental shelf, in particular that portion extending beyond
200 nm.
Coastal States may resort to marine protected areas on the continental shelf as
mechanisms towards short and long-term conservation of ocean nature—the
so-called “seafloor MPAs”. Given the global targets accorded by states in the last
decades (of which the 1992 Agenda 21 and the 2010 Aichi Targets are but some
examples), it is reasonable to expect that MPA may also be designated on the outer
continental shelf. Scientifically, it makes sense to enact a network of MPAs on vast
areas of the continental shelf, including beyond 200 nm, in order to protect representative areas of the marine environment.
38 A most interesting example is provided
by Portugal, who had the Altair Sea Mount recognized as a high-seas protected area
under the OSPAR Convention for the Protection of the marine environment of the
North-East Atlantic and, after that, as a protected area within national jurisdiction on
the basis of its claim on an extended continental shelf before the CLCS. In so doing,
the country avoided the requirement of direct consent of involved parties—a valid
and legal strategy.
39
38 For a scientific explanation of such a need, see generally Van Dover (2012).
39 Marta Chantal de Ribeiro, drawing on the Portuguese practice on the topic, states that “the Menez
Gwen field is located about 850 meters deep and the MPA occupies an area of 95.2 km
2
. The Lucky
308
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
states’ environmental jurisdiction over their territorial seas and EEZ.
In fact, coastal states are allowed to designate, among others, a zone de protection
écologique on their continental shelves. Nonetheless, only inasmuch as this zone do
not infringe upon or result in an unjustifiable interference with the rights and
freedoms of other states in the high seas above the shelf—Art. 78 (2) UNCLOS.
By declaring such a zone, coastal states may limit freedom to fish in the high seas, as
in the case of bottom-trawling. Yet, states are expected to adopt a pragmatic
approach, i.e. to assess the relevance and environmental status of what needs formal
and material protection. It is a priority to ascertain, scientifically, whether existing
MPAs cover a number and extent of significant species and habitats by their
uniqueness and sufficiently representative. Only so will coastal states avoid the
trap of declaring ill-suited MPAs or protecting areas where little imminent risks or
threats exist.
Coastal states may, thus, legislate domestically to designate MPAs and adopt
measures to enforce such legislation. That is not only a right, but also an international obligation. The right to do so stems from the very nature of those area-based
management tools: protecting and preserving the marine environment. As shown
supra, coastal State’s jurisdiction on the continental shelf include the adoption of
measures towards marine ecosystems’ protection. It is also an obligation, given the
entry into force of Conventions and Agreements that rely on the establishment of
networks of MPAs worldwide, so as to protect representative areas of the ecological
regions and areas of particular relevance in terms of biological diversity. However,
there exists great difference between designating area-based protective measures in
the EEZ and on the continental shelf, in particular that portion extending beyond
200 nm.
Coastal States may resort to marine protected areas on the continental shelf as
mechanisms towards short and long-term conservation of ocean nature—the
so-called “seafloor MPAs”. Given the global targets accorded by states in the last
decades (of which the 1992 Agenda 21 and the 2010 Aichi Targets are but some
examples), it is reasonable to expect that MPA may also be designated on the outer
continental shelf. Scientifically, it makes sense to enact a network of MPAs on vast
areas of the continental shelf, including beyond 200 nm, in order to protect representative areas of the marine environment.
38 A most interesting example is provided
by Portugal, who had the Altair Sea Mount recognized as a high-seas protected area
under the OSPAR Convention for the Protection of the marine environment of the
North-East Atlantic and, after that, as a protected area within national jurisdiction on
the basis of its claim on an extended continental shelf before the CLCS. In so doing,
the country avoided the requirement of direct consent of involved parties—a valid
and legal strategy.
39
38 For a scientific explanation of such a need, see generally Van Dover (2012).
39 Marta Chantal de Ribeiro, drawing on the Portuguese practice on the topic, states that “the Menez
Gwen field is located about 850 meters deep and the MPA occupies an area of 95.2 km
2
. The Lucky
308
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...