The practice of creeping jurisdiction is usually attributed to coastal states
24 and
amounts to the “extension of municipal jurisdiction seaward along the seabed and
from thence to the vertical column above and the souterrain below”.
25 Similarly,
creeping jurisdiction has been defined as the “gradual extension of State jurisdiction
offshore”, with a focus on the steadiness of jurisdictional expansionism towards the
high seas.
26 In short, creeping jurisdiction would be the power unilaterally
revendicated by coastal states in violation of UNCLOS legal edifice, beyond either
the maritime limits established therein or the competences exercisable in each zone.
Key elements of the concept are, accordingly, the unilaterality of claims, and the
violation of a valid international legal rule.
27 For that reason, specialized literature
refer also to “excessive claims” on behalf of states in pre-UNCLOS times and even
after the adoption of the Convention. Concerning the first element, the practice is
unilateral in the sense that it consists of an action performed by one state involved in
a concrete situation without the agreement of other fellow states. The phenomenon
has been inserted in a broader movement of unilateralism, which comprise coastal
states’ struggle to increase real power and authority over adjacent waters offshore, in
order not only to reap the economic benefits of marine resources with exclusivity,
but also to keep other maritime powers (sometimes perceived as threats) away from
their areas of geopolitical influence.
28
In this sense, it could be also labeled exclusivism, amid plenty of others possible
tags, depending on the political ideology of the analyst. This element of unilaterality,
particularly when it concerns assertions older than UNCLOS, goes not without
controversy and will be analyzed in the next subitem. As to the second element, to
“creep on” jurisdiction is widely believed to entail the breaching of a legal norm
enshrined either in customary or treaty law. Thus, the practice of creeping jurisdiction is taken by the law of the sea literature as inherently vicious and threatening to
the stability of the international rule of law in oceanic affairs, to the extent of being
24 In theory, states creeping on jurisdiction could be both flag states and coastal states, as both could
seek to exercise extended powers over the oceans. However, there are no records of unilateral
declarations by flag states asserting jurisdictional rights (such as fishing rights) within maritime
zones of coastal states—when such practices happen, they are usually carried on in the shadows.
Thus, for this work, precedence will be given to jurisdictional claims of coastal states.
25 As referred by John Craven, once Chief Scientist of the United States Navy. For that reason, the
practice of creeping jurisdiction is also known as “Craven’s Law”, in line with Burke (1970), p. 195.
26 Kaye (2006), p. 347.
27 The expression “creeping”, to Erik Franckx, “includes the idea of unilateral action directed at
upsetting a legal framework adhered to by the majority of other States” (emphasis added). See
Franckx (2005), p. 136.
28 See generally Kraska (2011).
6.2 Definition of “Creeping Jurisdiction”
147
24 and
amounts to the “extension of municipal jurisdiction seaward along the seabed and
from thence to the vertical column above and the souterrain below”.
25 Similarly,
creeping jurisdiction has been defined as the “gradual extension of State jurisdiction
offshore”, with a focus on the steadiness of jurisdictional expansionism towards the
high seas.
26 In short, creeping jurisdiction would be the power unilaterally
revendicated by coastal states in violation of UNCLOS legal edifice, beyond either
the maritime limits established therein or the competences exercisable in each zone.
Key elements of the concept are, accordingly, the unilaterality of claims, and the
violation of a valid international legal rule.
27 For that reason, specialized literature
refer also to “excessive claims” on behalf of states in pre-UNCLOS times and even
after the adoption of the Convention. Concerning the first element, the practice is
unilateral in the sense that it consists of an action performed by one state involved in
a concrete situation without the agreement of other fellow states. The phenomenon
has been inserted in a broader movement of unilateralism, which comprise coastal
states’ struggle to increase real power and authority over adjacent waters offshore, in
order not only to reap the economic benefits of marine resources with exclusivity,
but also to keep other maritime powers (sometimes perceived as threats) away from
their areas of geopolitical influence.
28
In this sense, it could be also labeled exclusivism, amid plenty of others possible
tags, depending on the political ideology of the analyst. This element of unilaterality,
particularly when it concerns assertions older than UNCLOS, goes not without
controversy and will be analyzed in the next subitem. As to the second element, to
“creep on” jurisdiction is widely believed to entail the breaching of a legal norm
enshrined either in customary or treaty law. Thus, the practice of creeping jurisdiction is taken by the law of the sea literature as inherently vicious and threatening to
the stability of the international rule of law in oceanic affairs, to the extent of being
24 In theory, states creeping on jurisdiction could be both flag states and coastal states, as both could
seek to exercise extended powers over the oceans. However, there are no records of unilateral
declarations by flag states asserting jurisdictional rights (such as fishing rights) within maritime
zones of coastal states—when such practices happen, they are usually carried on in the shadows.
Thus, for this work, precedence will be given to jurisdictional claims of coastal states.
25 As referred by John Craven, once Chief Scientist of the United States Navy. For that reason, the
practice of creeping jurisdiction is also known as “Craven’s Law”, in line with Burke (1970), p. 195.
26 Kaye (2006), p. 347.
27 The expression “creeping”, to Erik Franckx, “includes the idea of unilateral action directed at
upsetting a legal framework adhered to by the majority of other States” (emphasis added). See
Franckx (2005), p. 136.
28 See generally Kraska (2011).
6.2 Definition of “Creeping Jurisdiction”
147