eighty-four large surface combat ships (such as destroyers and cruisers) and twelve
nuclear-powered attack submarines.
7
With the United States Navy’s announced plan of achieving a force structure of
355 warships,
8 what would be the use of a mighty navy without legal certainty to
navigate and demonstrate power in as many corners of the world oceans as possible?
Apart from deterrent power, maritime states possess large and well-equipped fishing
fleets, as well as enough technical development to drill down several kilometers of
the seabed and subsoil in search of hydrocarbons, no matter how harsh the climate
conditions at the water surface, nor the geological ruggedness. Due to commercial
interests, such countries favor the limitation of coastal state jurisdiction to the least
geographical and material scope possible—which is, as a matter of fact, an
unannounced purpose of Freedom of Navigation Operations (FON).
9
While all maritime powers are coastal states, the reverse does not hold true. In
fact, littoral states exercising little influence in ocean geopolitics respond for most of
the international community. Coastal states from Europe, Latin America, Southeast
Asia, and Africa (particularly after the decolonization wave of the 1960s), have long
been excluded from the selected category of maritime powers. Precisely those states
acted either individually,
10 or on a concerted basis,
11 and were the main drivers of a
sea-change in the traditional dual-jurisdiction division of the oceans that took place
in the second half of the twentieth century.
The category of coastal states has never been homogeneous, and so were not the
main interests behind the remodeling of the division of the oceans in the
pre-UNCLOS era. On the one hand, there were Western European states, endowed
with better economic conditions. On the other, developing and least developed
states. Both had economic-based interests in forwarding jurisdictional assertions to
larger maritime spaces, but non-European developing coastal states also wielded the
overarching objective to impede the perpetuation of a system based on the deprivation of coastal state’s power over natural resources off their shores. Were it not for
the centuries old “marginal sea” of 3 nm, the principle of freedom of the seas would
have been absolute, be it to navigate, explore or exploit.
If freedom prevails, some could say, all coastal states alike may enjoy it and the
international community as whole would profit from it. In this regard, it is interesting
7 O’Rourke (2017), p. 19.
8 Id. 19.
9 Regarding the tension between freedom of the seas and sovereignty claims of third world countries
towards the ocean, noteworthy is the Freedom of Navigation Program (FON) of the United States
Navy. In force since 1979, a few years before UNCLOS III was open for signature, this program has
the main goal of highlighting “navigation provisions of the LOS Convention to further the
recognition of the vital national need to protect maritime rights throughout the world”. Available
at: http://www.state.gov/e/oes/ocns/opa/maritimesecurity/. Accessed 08 April 2020.
10 It is the case of Norway and Denmark, which claimed a territorial sea of 4 nm, and Italy, with
claims of a 6 nm territorial sea, in the period anteceding the 1930 League of Nations Conference.
11 It is the case of Latin American states, which joined efforts to validate jurisdiction expansion with
international declarations on the topic.
6.1 Context of the Practice Known as “Creeping Jurisdiction”
143
nuclear-powered attack submarines.
7
With the United States Navy’s announced plan of achieving a force structure of
355 warships,
8 what would be the use of a mighty navy without legal certainty to
navigate and demonstrate power in as many corners of the world oceans as possible?
Apart from deterrent power, maritime states possess large and well-equipped fishing
fleets, as well as enough technical development to drill down several kilometers of
the seabed and subsoil in search of hydrocarbons, no matter how harsh the climate
conditions at the water surface, nor the geological ruggedness. Due to commercial
interests, such countries favor the limitation of coastal state jurisdiction to the least
geographical and material scope possible—which is, as a matter of fact, an
unannounced purpose of Freedom of Navigation Operations (FON).
9
While all maritime powers are coastal states, the reverse does not hold true. In
fact, littoral states exercising little influence in ocean geopolitics respond for most of
the international community. Coastal states from Europe, Latin America, Southeast
Asia, and Africa (particularly after the decolonization wave of the 1960s), have long
been excluded from the selected category of maritime powers. Precisely those states
acted either individually,
10 or on a concerted basis,
11 and were the main drivers of a
sea-change in the traditional dual-jurisdiction division of the oceans that took place
in the second half of the twentieth century.
The category of coastal states has never been homogeneous, and so were not the
main interests behind the remodeling of the division of the oceans in the
pre-UNCLOS era. On the one hand, there were Western European states, endowed
with better economic conditions. On the other, developing and least developed
states. Both had economic-based interests in forwarding jurisdictional assertions to
larger maritime spaces, but non-European developing coastal states also wielded the
overarching objective to impede the perpetuation of a system based on the deprivation of coastal state’s power over natural resources off their shores. Were it not for
the centuries old “marginal sea” of 3 nm, the principle of freedom of the seas would
have been absolute, be it to navigate, explore or exploit.
If freedom prevails, some could say, all coastal states alike may enjoy it and the
international community as whole would profit from it. In this regard, it is interesting
7 O’Rourke (2017), p. 19.
8 Id. 19.
9 Regarding the tension between freedom of the seas and sovereignty claims of third world countries
towards the ocean, noteworthy is the Freedom of Navigation Program (FON) of the United States
Navy. In force since 1979, a few years before UNCLOS III was open for signature, this program has
the main goal of highlighting “navigation provisions of the LOS Convention to further the
recognition of the vital national need to protect maritime rights throughout the world”. Available
at: http://www.state.gov/e/oes/ocns/opa/maritimesecurity/. Accessed 08 April 2020.
10 It is the case of Norway and Denmark, which claimed a territorial sea of 4 nm, and Italy, with
claims of a 6 nm territorial sea, in the period anteceding the 1930 League of Nations Conference.
11 It is the case of Latin American states, which joined efforts to validate jurisdiction expansion with
international declarations on the topic.
6.1 Context of the Practice Known as “Creeping Jurisdiction”
143