6.2 Definition of “Creeping Jurisdiction”
Creeping jurisdiction, for the purposes of the law of the sea,
19 is usually referred to
as the practice by sovereign states of seeking to extend territorial jurisdiction over
maritime spaces beyond what is permitted by international customary or treaty law.
In so doing, walk a thin line between legality, when for instance adopting ampliative
or restrictive interpretation of treaty provisions,
20 and illegality, via open disdain for
unwanted restrictions. It would the case of a coastal state’s declaration not to admit
unauthorized military maneuvers by foreign warships in that state’s EEZ, an interpretation that is not prima facie at UNCLOS and that creates much confusion up to
present days. Or when states unilaterally expand jurisdiction over lengths farther
away than the 200-nm zone established at UNCLOS, such as the Chinese Nine
Dash-Line claim.
21
In temporal terms, creeping jurisdiction is a relatively recent phenomenon, if one
takes the long history of the law of the sea into account. This phenomenon has been
analyzed in specialized literature since the first half of the twentieth century,
although some authors refer to “creeping jurisdiction” only regarding coastal states’
abusive behavior following the Montego Bay Convention, from 1982 onwards.
22
Others, such as Stuart Kaye, refer to that practice as having occurred “through the
course of the twentieth century”.
23 This work deals with criticisms to the concept
that stretch back to pre-UNCLOS times and influence the main narrative in the
traditional law of the sea doctrine, which sees the expansion of coastal state’s power
as a vicious development, equal to the enclosure and private appropriation of the
oceans.
19 In general, one could refer to the quest for enhanced power and authority as an inherent and
essential feature of sovereign states, being that one of the reasons for the existence of international
law, as a limiting tool to state expansionism in different ambits of international relations.
20 In the view of Maria Gavouneli, the majority of claims of creeping jurisdiction “are not set in
regulatory language but are rather based on construing new ways to read the provisions establishing
the existing maritime zones”. See Gavouneli (2007), p. 59. In other words, states nowadays do not
unilaterally declare that a certain maritime zone is under their jurisdiction, but rather interpret the
UNCLOS provisions in an expansive fashion in order to legitimate expansive claims towards the
ocean. Several coastal states do so on political, rather than juridical grounds, with the final aim of
restricting the intensity of foreign activities off their coasts, Brazil and its non-acceptance of
unauthorized military maneuvers in the EEZ being a case in point.
21 The Chinese Nine-Dash Line consists of a territorial claim by Chinese authorities which effectively places most of the South China Sea under Chinese jurisdiction, thus inflating uproar among
its maritime neighbors. The case was brought to arbitration under Annex VII UNCLOS by the
Philippines, and the arbitral award deemed the Chinese claims as excessive and inconsistent with
the Convention. For more, access the final award. PCA The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016.
22 Ribeiro (2013), p. 621.
23 Kaye (2006), p. 347.
146
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
Creeping jurisdiction, for the purposes of the law of the sea,
19 is usually referred to
as the practice by sovereign states of seeking to extend territorial jurisdiction over
maritime spaces beyond what is permitted by international customary or treaty law.
In so doing, walk a thin line between legality, when for instance adopting ampliative
or restrictive interpretation of treaty provisions,
20 and illegality, via open disdain for
unwanted restrictions. It would the case of a coastal state’s declaration not to admit
unauthorized military maneuvers by foreign warships in that state’s EEZ, an interpretation that is not prima facie at UNCLOS and that creates much confusion up to
present days. Or when states unilaterally expand jurisdiction over lengths farther
away than the 200-nm zone established at UNCLOS, such as the Chinese Nine
Dash-Line claim.
21
In temporal terms, creeping jurisdiction is a relatively recent phenomenon, if one
takes the long history of the law of the sea into account. This phenomenon has been
analyzed in specialized literature since the first half of the twentieth century,
although some authors refer to “creeping jurisdiction” only regarding coastal states’
abusive behavior following the Montego Bay Convention, from 1982 onwards.
22
Others, such as Stuart Kaye, refer to that practice as having occurred “through the
course of the twentieth century”.
23 This work deals with criticisms to the concept
that stretch back to pre-UNCLOS times and influence the main narrative in the
traditional law of the sea doctrine, which sees the expansion of coastal state’s power
as a vicious development, equal to the enclosure and private appropriation of the
oceans.
19 In general, one could refer to the quest for enhanced power and authority as an inherent and
essential feature of sovereign states, being that one of the reasons for the existence of international
law, as a limiting tool to state expansionism in different ambits of international relations.
20 In the view of Maria Gavouneli, the majority of claims of creeping jurisdiction “are not set in
regulatory language but are rather based on construing new ways to read the provisions establishing
the existing maritime zones”. See Gavouneli (2007), p. 59. In other words, states nowadays do not
unilaterally declare that a certain maritime zone is under their jurisdiction, but rather interpret the
UNCLOS provisions in an expansive fashion in order to legitimate expansive claims towards the
ocean. Several coastal states do so on political, rather than juridical grounds, with the final aim of
restricting the intensity of foreign activities off their coasts, Brazil and its non-acceptance of
unauthorized military maneuvers in the EEZ being a case in point.
21 The Chinese Nine-Dash Line consists of a territorial claim by Chinese authorities which effectively places most of the South China Sea under Chinese jurisdiction, thus inflating uproar among
its maritime neighbors. The case was brought to arbitration under Annex VII UNCLOS by the
Philippines, and the arbitral award deemed the Chinese claims as excessive and inconsistent with
the Convention. For more, access the final award. PCA The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016.
22 Ribeiro (2013), p. 621.
23 Kaye (2006), p. 347.
146
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .