rights to explore and exploit, and, on the other, a general obligation to protect and
preserve the marine environment. Nothing more than that.
The concept of a “right-duty” is widely employed in Brazilian legal doctrine,
namely in constitutional studies, to refer to a category of rights, in a sense of
formulation containing a subjective Anspruch to a particular good, which is simultaneously an obligation to act or behave on a particular way. The right-duty
suggested here does not apply exclusively to natural resources, for it is not identical
to the sovereign rights prescribed in Art. 77 (1) UNCLOS. It also governs activities
which do not directly interfere with natural resources, but which may pose harm to
the marine environment at large. In other words, the right-duty to manage goes a step
further than sovereign rights in providing international legal contours for coastal
states’ domestic environmental powers.
Having that in mind, the specific environmental duties which comprise the rightduty to manage the continental shelf are: duty not to cause damage by pollution to
the environment of other states, Art. 194 (2) UNCLOS; duty not to transfer damage
or hazards from one area to another or to transform one type of pollution into
another, so Art. 195 UNCLOS; duty to monitor risks and effects of all sources of
pollution to the marine environment, as well as the duty to assess the potential effects
of activities which may cause substantial pollution of or significant and harmful
changes to the marine environment, pursuant to Arts. 204 and 206 UNCLOS;
obligation to regulate, enforce and monitor measures towards the preservation of
marine biodiversity, pursuant to Arts. 5 to 8 CBD. Finally, states are compelled by
the duty to promote the sustainable development of marine natural resources, an
obligation which may be extracted not only from certain UNCLOS provisions, but
also from key environmental treaties.
The relevance of emphasizing the existence of such a right-duty to manage within
the UNCLOS’ edifice lies on the fact that a literary reading of Art. 77 (1) of the
Convention could eventually lead to the understanding that coastal states exercise
sovereign rights over continental shelf resources for the exclusive purpose of
exploring and exploiting those resources, nothing else. The deliberate absence of
expressions such as “management” or “protect and preserve”, or “marine environment” in Part VI of the Convention could, thus, guide to strict interpretations on the
extent of coastal states’ powers over that specific space. Such a literal interpretation
would not survive a thorough legal analysis, based, among others, on the evolutive
and purpose-oriented hermeneutics suggested at the Art. 31 (1) of the Vienna
Convention on the Law of Treaties.
1
The idea of a right-duty to manage the continental shelf is not to say that this work
believes so blindly on the capacity of individual nation-states to solve transindividual issues; that it neglects contemporary calls for collective action and for
enhanced cooperation to tackle the deterioration of the world’s oceans. Quite the
1 Art. 31 (1), VCLT: A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its object and
purpose.
11 Conclusions
361
preserve the marine environment. Nothing more than that.
The concept of a “right-duty” is widely employed in Brazilian legal doctrine,
namely in constitutional studies, to refer to a category of rights, in a sense of
formulation containing a subjective Anspruch to a particular good, which is simultaneously an obligation to act or behave on a particular way. The right-duty
suggested here does not apply exclusively to natural resources, for it is not identical
to the sovereign rights prescribed in Art. 77 (1) UNCLOS. It also governs activities
which do not directly interfere with natural resources, but which may pose harm to
the marine environment at large. In other words, the right-duty to manage goes a step
further than sovereign rights in providing international legal contours for coastal
states’ domestic environmental powers.
Having that in mind, the specific environmental duties which comprise the rightduty to manage the continental shelf are: duty not to cause damage by pollution to
the environment of other states, Art. 194 (2) UNCLOS; duty not to transfer damage
or hazards from one area to another or to transform one type of pollution into
another, so Art. 195 UNCLOS; duty to monitor risks and effects of all sources of
pollution to the marine environment, as well as the duty to assess the potential effects
of activities which may cause substantial pollution of or significant and harmful
changes to the marine environment, pursuant to Arts. 204 and 206 UNCLOS;
obligation to regulate, enforce and monitor measures towards the preservation of
marine biodiversity, pursuant to Arts. 5 to 8 CBD. Finally, states are compelled by
the duty to promote the sustainable development of marine natural resources, an
obligation which may be extracted not only from certain UNCLOS provisions, but
also from key environmental treaties.
The relevance of emphasizing the existence of such a right-duty to manage within
the UNCLOS’ edifice lies on the fact that a literary reading of Art. 77 (1) of the
Convention could eventually lead to the understanding that coastal states exercise
sovereign rights over continental shelf resources for the exclusive purpose of
exploring and exploiting those resources, nothing else. The deliberate absence of
expressions such as “management” or “protect and preserve”, or “marine environment” in Part VI of the Convention could, thus, guide to strict interpretations on the
extent of coastal states’ powers over that specific space. Such a literal interpretation
would not survive a thorough legal analysis, based, among others, on the evolutive
and purpose-oriented hermeneutics suggested at the Art. 31 (1) of the Vienna
Convention on the Law of Treaties.
1
The idea of a right-duty to manage the continental shelf is not to say that this work
believes so blindly on the capacity of individual nation-states to solve transindividual issues; that it neglects contemporary calls for collective action and for
enhanced cooperation to tackle the deterioration of the world’s oceans. Quite the
1 Art. 31 (1), VCLT: A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its object and
purpose.
11 Conclusions
361