194. Then, as a second step, Art. 208 establishes states’ jurisdiction to prescribe laws
and regulations for combatting marine pollution from all sources, thereby elaborating on the general obligations laid down previously.
The second half of Chap. 8 appraised coastal states’ enforcement jurisdiction over
the continental shelf. It found that those states have the right to take enforcement
measures aimed at implementing national laws against activities which may harm
living resources of their continental shelves—especially within, but also beyond
200 nm, pursuant to UNCLOS Arts. 73 and 77. Before reaching such conclusion,
this work analyzed arguments pro and against coastal states’ enforcement jurisdiction on the continental shelf, especially beyond 200 nm.
Those who are against enforcement rights on the extended shelf support their
views on the fact that UNCLOS does not expressly provide for such jurisdiction.
Those defending the legality of coastal states enforcing their rights on the outer shelf
invoke the commentaries to the 1958 CSC, which saw implicit control powers to
prevent violations of their rights—control meaning preventive and punishment
powers. Such an interpretation prioritizes the effective achievement of coastal states’
sovereign rights and functional jurisdiction over the continental shelf, without
extending such rights ratione loci to the superjacent waters.
The exercise of such rights, however, is subject to the obligation of due regard
when taking measures, as the Convention expressly prohibits “unjustifiable interferences” to the rights and freedoms of other states. Due to their conflictive potential,
enforcement questions made it to international jurisprudence in several occasions—
yet, always with regard to the EEZ, never the continental shelf beyond 200 nm. It is
the case of ITLOS’ Virginia G case and coastal states’ right to “take the necessary
enforcement measures” for the implementation of national legislation; or the Arctic
Sunrise Arbitration and coastal states’ right to enforce domestic laws relating to
non-living resources in the EEZ on a reasonable, necessary and proportionate
manner.
Coastal states must exercise environmental powers within the material limits of
Art. 78 UNCLOS—must not infringe or result in any unjustifiable interference with
navigation and other rights of other states. Yet, “unjustifiable” is a term passive of
different interpretations, especially as time passes and new values inspire the international community. When France, Spain and Portugal decided to unilaterally ban
the access of single-hull tankers from their EEZ, such a measure was considered by
many as “unjustifiable” at the time, but certainly is not so nowadays. Thus, borderline cases in which coastal states cap rights and freedoms of high seas of other states,
while exercising environmental jurisdiction above the outer continental shelf should
be analyzed on a case-by-case basis.
As discussed in Chaps. 7 and 8, coastal states’ environmental jurisdiction on the
outer continental shelf is not a matter of black and white, but of different shades of
grey. This work concluded that the coastal states’ sovereign rights and jurisdiction
over the continental shelf are far from absolute, but so are the traditional freedoms of
the seas enshrined in Art. 87 UNCLOS. That is the so-called “mutual due regard”,
which falls upon coastal and other states alike. In current days, the balance between
rights and obligations of coastal states and other states over the continental shelf
11 Conclusions
363
and regulations for combatting marine pollution from all sources, thereby elaborating on the general obligations laid down previously.
The second half of Chap. 8 appraised coastal states’ enforcement jurisdiction over
the continental shelf. It found that those states have the right to take enforcement
measures aimed at implementing national laws against activities which may harm
living resources of their continental shelves—especially within, but also beyond
200 nm, pursuant to UNCLOS Arts. 73 and 77. Before reaching such conclusion,
this work analyzed arguments pro and against coastal states’ enforcement jurisdiction on the continental shelf, especially beyond 200 nm.
Those who are against enforcement rights on the extended shelf support their
views on the fact that UNCLOS does not expressly provide for such jurisdiction.
Those defending the legality of coastal states enforcing their rights on the outer shelf
invoke the commentaries to the 1958 CSC, which saw implicit control powers to
prevent violations of their rights—control meaning preventive and punishment
powers. Such an interpretation prioritizes the effective achievement of coastal states’
sovereign rights and functional jurisdiction over the continental shelf, without
extending such rights ratione loci to the superjacent waters.
The exercise of such rights, however, is subject to the obligation of due regard
when taking measures, as the Convention expressly prohibits “unjustifiable interferences” to the rights and freedoms of other states. Due to their conflictive potential,
enforcement questions made it to international jurisprudence in several occasions—
yet, always with regard to the EEZ, never the continental shelf beyond 200 nm. It is
the case of ITLOS’ Virginia G case and coastal states’ right to “take the necessary
enforcement measures” for the implementation of national legislation; or the Arctic
Sunrise Arbitration and coastal states’ right to enforce domestic laws relating to
non-living resources in the EEZ on a reasonable, necessary and proportionate
manner.
Coastal states must exercise environmental powers within the material limits of
Art. 78 UNCLOS—must not infringe or result in any unjustifiable interference with
navigation and other rights of other states. Yet, “unjustifiable” is a term passive of
different interpretations, especially as time passes and new values inspire the international community. When France, Spain and Portugal decided to unilaterally ban
the access of single-hull tankers from their EEZ, such a measure was considered by
many as “unjustifiable” at the time, but certainly is not so nowadays. Thus, borderline cases in which coastal states cap rights and freedoms of high seas of other states,
while exercising environmental jurisdiction above the outer continental shelf should
be analyzed on a case-by-case basis.
As discussed in Chaps. 7 and 8, coastal states’ environmental jurisdiction on the
outer continental shelf is not a matter of black and white, but of different shades of
grey. This work concluded that the coastal states’ sovereign rights and jurisdiction
over the continental shelf are far from absolute, but so are the traditional freedoms of
the seas enshrined in Art. 87 UNCLOS. That is the so-called “mutual due regard”,
which falls upon coastal and other states alike. In current days, the balance between
rights and obligations of coastal states and other states over the continental shelf
11 Conclusions
363