The intersection between continental shelf and high seas rules is a rather complex
and delicate one—which required an entire item of this work. Here, it was shown
that the powers exercisable by the coastal state over the outer continental shelf relate
exclusively to the seafloor, as UNCLOS preserved the legal status of the superjacent
waters beyond the 200 nm as high seas.
Regarding the legal intersection between outer continental shelf rules and the
regime of the Area, this book identified a problematic perception among international lawyers, that coastal states’ aggressiveness in asserting jurisdiction over the
outer continental shelf—via constant attempts to place as much ocean floor under
national jurisdiction as possible—amounts to the decline of the common heritage
principle. As abominable as national excessive claims may be, there seems to be an
exaggerated emphasis on the imminence of conflictive scenarios between coastal
states and the international community in the process of outer continental shelf
delineation. On the issue of an alleged a priori “encroachment” of continental
shelves over the Area, there is no such intrusion, for two reasons. Firstly, both
regimes were born at the same time, upon the signature of UNCLOS. Secondly, the
geological continental margin has always been there. What coastal states claim is
merely jurisdiction over a submarine portion of their land territory.
Even if allegedly well-intentioned, alarmism against coastal states’ jurisdictional
expansion, depicted as one of the greatest threats to the common heritage principle,
is prejudicial to an accurate analysis of the interactions between the legal regimes of
Area and the continental shelf. Hyperbolic criticisms may pose risks to the consolidation of the continental shelf regime, in particular the portion extending beyond
200 nm, and obfuscate the fact that the road for encroaching on the Area can be made
a lot more difficult than some of those criticisms may suggest. Overall, the efforts to
create an international regime for the submerged spaces beyond national jurisdiction
have been, to a large extent, successful.
From such intersections, this work identified a transparent confrontation between
calls for a “renewed ethos” for the mare liberum doctrine—in which environmental
rights are better placed in relation to traditional freedoms of the seas—and calls for a
detachment from a “territorial mentality” that allegedly purports more losses than
gains to a holistic environmental governance of the oceans. The chief question
remains how to balance coastal states’ jurisdiction with the freedoms of the high
seas and the obligation of due regard for the rights of other states. For that, Chap. 6
analyzed coastal states’ jurisdictional expansion in the second half of the last
century, followed by a critique on the specialized literature that overemphasizes
the aspect of illegality and abusiveness of coastal states’ jurisdictional claims
seawards.
Most doctrinal studies, when analyzing the legality of coastal states’ jurisdictional
claims seawards, prioritize the principle of freedom of navigation to the detriment of
socioeconomic development and, more recently, marine environmental health. The
practice of advancing jurisdictional assertions seaward is often depicted as excessive
and undesirable in practically every scenario and, therefore, damaging to the maintenance of peace and order in the world oceans. Early unilateral claims prior to 1982
were considered to have violated customary law, while newer claims are said to
11 Conclusions
357
and delicate one—which required an entire item of this work. Here, it was shown
that the powers exercisable by the coastal state over the outer continental shelf relate
exclusively to the seafloor, as UNCLOS preserved the legal status of the superjacent
waters beyond the 200 nm as high seas.
Regarding the legal intersection between outer continental shelf rules and the
regime of the Area, this book identified a problematic perception among international lawyers, that coastal states’ aggressiveness in asserting jurisdiction over the
outer continental shelf—via constant attempts to place as much ocean floor under
national jurisdiction as possible—amounts to the decline of the common heritage
principle. As abominable as national excessive claims may be, there seems to be an
exaggerated emphasis on the imminence of conflictive scenarios between coastal
states and the international community in the process of outer continental shelf
delineation. On the issue of an alleged a priori “encroachment” of continental
shelves over the Area, there is no such intrusion, for two reasons. Firstly, both
regimes were born at the same time, upon the signature of UNCLOS. Secondly, the
geological continental margin has always been there. What coastal states claim is
merely jurisdiction over a submarine portion of their land territory.
Even if allegedly well-intentioned, alarmism against coastal states’ jurisdictional
expansion, depicted as one of the greatest threats to the common heritage principle,
is prejudicial to an accurate analysis of the interactions between the legal regimes of
Area and the continental shelf. Hyperbolic criticisms may pose risks to the consolidation of the continental shelf regime, in particular the portion extending beyond
200 nm, and obfuscate the fact that the road for encroaching on the Area can be made
a lot more difficult than some of those criticisms may suggest. Overall, the efforts to
create an international regime for the submerged spaces beyond national jurisdiction
have been, to a large extent, successful.
From such intersections, this work identified a transparent confrontation between
calls for a “renewed ethos” for the mare liberum doctrine—in which environmental
rights are better placed in relation to traditional freedoms of the seas—and calls for a
detachment from a “territorial mentality” that allegedly purports more losses than
gains to a holistic environmental governance of the oceans. The chief question
remains how to balance coastal states’ jurisdiction with the freedoms of the high
seas and the obligation of due regard for the rights of other states. For that, Chap. 6
analyzed coastal states’ jurisdictional expansion in the second half of the last
century, followed by a critique on the specialized literature that overemphasizes
the aspect of illegality and abusiveness of coastal states’ jurisdictional claims
seawards.
Most doctrinal studies, when analyzing the legality of coastal states’ jurisdictional
claims seawards, prioritize the principle of freedom of navigation to the detriment of
socioeconomic development and, more recently, marine environmental health. The
practice of advancing jurisdictional assertions seaward is often depicted as excessive
and undesirable in practically every scenario and, therefore, damaging to the maintenance of peace and order in the world oceans. Early unilateral claims prior to 1982
were considered to have violated customary law, while newer claims are said to
11 Conclusions
357