Subsequently, an attempt is made in Chap. 5 to critically assess whether pre- and
post-UNCLOS jurisdictional assertions by coastal states, also regarding continental
shelf activities, is reason strong enough for “sounding the sirens” of the international
community against the practice of the so-called “creeping jurisdiction”. Finally, that
chapter also entertains the question as to what extent the legal possibility of
delineating the outer limits of the continental shelf beyond 200 nm would be in
itself an exercise of excessive jurisdiction.
There has been a minimal number of works on the inventory of coastal states’
jurisdictional rights on the outer continental shelf,
2 which have begun to lay down a
most needed picture of the delicate balance between coastal state and flag state
jurisdiction in the continental shelf area. The added value of this book is, therefore,
to (i) problematize the current regulatory maneuver room of coastal states in terms of
prescribing and enforcing enhanced environmental protective legislation on the
continental shelf; and (ii) to link the exercise of jurisdiction by coastal states on
the continental shelf to the analysis of domestic legislation and policies of a relevant,
but in recent times ignored global player in ocean affairs: Brazil.
The focus of this work lies on the legal analysis of the prescriptive and enforcement jurisdiction of coastal states and the way it affects the current balance between
opposing uses of the oceans, in particular the opposition between navigational
freedoms and the coastal state’s right-duty to protect and preserve the marine
environment. Before engaging with that specific issue, it is advisable to scrutinize
the concept of jurisdiction in general international law and in the law of the sea, as
this scrutiny will prove pivotal to the development of the argumentation to come, on
the composition of an alleged “environmental jurisdiction” of coastal states over the
continental shelf within and beyond 200 nm.
One may ask whether the answer to all questions regarding state jurisdiction on
the continental shelf are not straightforwardly found in UNCLOS Part VI. The reply
is naturally a negative one, as it is not simple as that. Large chunks of the Convention’s provisions are built on the dichotomy between two grand principles: those of
state jurisdiction and freedoms of the high seas.
3 Consequently, it is safe to affirm
that several political and legal tensions arise out of such dichotomy. The apparent
simplicity of the allocation of rights and duties over the continental shelf is deceptive, as UNCLOS does not specify the material extent of coastal states’ jurisdiction
to regulate and enforce domestic laws on the marine environmental protection in
borderline cases, such as the regulation of fish-trawling or bioprospecting for marine
scientific resources, or marine scientific research on the outer continental shelf for
economic and ecological purposes. The objective of the following argumentation is
to consider the Convention’s weakest and potentially contradictory points, so as to
facilitate domestic enforcement in accordance with the wording and the spirit of the
legal text.
2 See generally Mossop (2016).
3 Tanaka (2012), pp. 16–20.
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4 Sovereignty and Jurisdiction in the Law of the Sea
post-UNCLOS jurisdictional assertions by coastal states, also regarding continental
shelf activities, is reason strong enough for “sounding the sirens” of the international
community against the practice of the so-called “creeping jurisdiction”. Finally, that
chapter also entertains the question as to what extent the legal possibility of
delineating the outer limits of the continental shelf beyond 200 nm would be in
itself an exercise of excessive jurisdiction.
There has been a minimal number of works on the inventory of coastal states’
jurisdictional rights on the outer continental shelf,
2 which have begun to lay down a
most needed picture of the delicate balance between coastal state and flag state
jurisdiction in the continental shelf area. The added value of this book is, therefore,
to (i) problematize the current regulatory maneuver room of coastal states in terms of
prescribing and enforcing enhanced environmental protective legislation on the
continental shelf; and (ii) to link the exercise of jurisdiction by coastal states on
the continental shelf to the analysis of domestic legislation and policies of a relevant,
but in recent times ignored global player in ocean affairs: Brazil.
The focus of this work lies on the legal analysis of the prescriptive and enforcement jurisdiction of coastal states and the way it affects the current balance between
opposing uses of the oceans, in particular the opposition between navigational
freedoms and the coastal state’s right-duty to protect and preserve the marine
environment. Before engaging with that specific issue, it is advisable to scrutinize
the concept of jurisdiction in general international law and in the law of the sea, as
this scrutiny will prove pivotal to the development of the argumentation to come, on
the composition of an alleged “environmental jurisdiction” of coastal states over the
continental shelf within and beyond 200 nm.
One may ask whether the answer to all questions regarding state jurisdiction on
the continental shelf are not straightforwardly found in UNCLOS Part VI. The reply
is naturally a negative one, as it is not simple as that. Large chunks of the Convention’s provisions are built on the dichotomy between two grand principles: those of
state jurisdiction and freedoms of the high seas.
3 Consequently, it is safe to affirm
that several political and legal tensions arise out of such dichotomy. The apparent
simplicity of the allocation of rights and duties over the continental shelf is deceptive, as UNCLOS does not specify the material extent of coastal states’ jurisdiction
to regulate and enforce domestic laws on the marine environmental protection in
borderline cases, such as the regulation of fish-trawling or bioprospecting for marine
scientific resources, or marine scientific research on the outer continental shelf for
economic and ecological purposes. The objective of the following argumentation is
to consider the Convention’s weakest and potentially contradictory points, so as to
facilitate domestic enforcement in accordance with the wording and the spirit of the
legal text.
2 See generally Mossop (2016).
3 Tanaka (2012), pp. 16–20.
86
4 Sovereignty and Jurisdiction in the Law of the Sea