From UNCLOS 82 to The Prestige: Towards safeguarding a balance between coastal state jurisdiction and commercial navigation rights from a vessel-source marine pollution perspective

Abstract

Like flag states, coastal states have always had an interest in, and the right to use the ocean space, but the exercise of coastal jurisdiction and commercial navigation rights has at times been subject to conflict. Among other things, the United Nations Convention on the Law of the Sea or -“UNCLOS 1982” was developed to protect the interests of both coastal states and flag states with respect to navigation rights within the respective maritime zones. However, due to reasons such as the desire to stem vessel-source marine pollution and its adverse effects, coastal states have tended to adopt increasingly restrictive measures concerning commercial navigation rights, and questions arise as to the future of the UNCLOS 82 regime. For coastal jurisdiction and navigation rights to be reconcilable it is crucial for states to continue to appreciate their personal interests in relation to the rationale and merits of the UNCLOS regime. This article thus revisits some instances of state (and regional) practice up to The Prestige incident of 2002 in a bid to highlight those fundamentals of international law that need to be safeguarded, at least from a vessel-source marine pollution perspective. The conclusion is that there is indeed a trend towards increased coastal state jurisdiction at the expense of international commercial navigation rights. The way forward is for coastal states and flag states to continue to negotiate within the International Maritime Organization prospective and actual coastal state actions that mayimpede navigation rights rather than resort to deviant unilateralism/regionalism.