referred to as “parcellation”,
29
“propertization”,
30 and “territorialization of the
oceans” via unilateral declaration of “psycho-legal boundaries at sea”.
31
Most law of the sea scholars share two grounding premises for the viciousness of
creeping jurisdiction: firstly, that freedom of navigation is a right that precedes all
others,
32 an overriding principle,
33 the long-standing heart of the law of the sea;
secondly, that coastal states are inherently attracted to increased power and authority
34 and, as such, doomed to always pursue enlarged jurisdiction overseas. For the
literature grounded on the first premise, freedom is the core element in the law of the
sea. In fact, according to David Anderson,
freedom of the high seas are freedoms under the law. They should be viewed increasingly as
no different from other fundamental rights of States under international law. [. . .] The
particular term ‘freedom’ is perhaps most relevant in the context of the non-exhaustive
nature of the list of freedoms of the high seas.
35
As to the second general premise, the “old problem of creeping jurisdiction” is
considered dangerous due to coastal states’ “tendency to expand the reach of their
regulations beyond 200 nautical miles”.
36 The argument according to which states
are fueled by desire for wealth and power is not novel to international relations
theories. Hence, the practice of creeping on jurisdiction would be the result of an
almost insatiable temptation to additional powers and competences over waters
adjacent to the coast. As analyzed by Richard Bilder, “any coastal state extension
of jurisdiction into the contiguous high seas, even if functionally limited, tends over
time to expand to include more claims, until it becomes the functional equivalent of a
territorial sea, in substance if not in name”.
37
The concept of creeping jurisdiction may be divided in two, according to the
nature of the expansion, whether geographical or in regulatory powers. There have
been distinctions between CJ, associated with the geographical enlargement seawards, and “thickening jurisdiction”, an increase in the activities regulated by a
coastal States within a particular maritime zone.
38 The latter would be equally old
and worrisome, as coastal states’ can be expected to permanently aim at asserting
29 Brown (1973), p. 157.
30 Gary Knight uses this expression in the context of discussions on the most adequate regime to
deep-sea mining, so as to make a point that a system of free enterprise and minimal regulation would
be best tailored for the exploitation of deep seabed minerals. In so doing, states would rely on the
“propertization” of the seabed to develop a regime that would recognize property rights over seabed
resources. See Knight (1981), p. 13.
31 Booth (1983), p. 373.
32 Lagoni (2003), p. 157.
33 Becker (2005), p. 132.
34 Gavouneli refers to coastal state’s “tendency to expand seawards”. See Gavouneli (2007), p. 59.
35 Anderson (2006), p. 345.
36 Türk (2012), p. 159.
37 Bilder (1973), p. 104.
38 Wayne (1996), p. 103.
148
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
29
“propertization”,
30 and “territorialization of the
oceans” via unilateral declaration of “psycho-legal boundaries at sea”.
31
Most law of the sea scholars share two grounding premises for the viciousness of
creeping jurisdiction: firstly, that freedom of navigation is a right that precedes all
others,
32 an overriding principle,
33 the long-standing heart of the law of the sea;
secondly, that coastal states are inherently attracted to increased power and authority
34 and, as such, doomed to always pursue enlarged jurisdiction overseas. For the
literature grounded on the first premise, freedom is the core element in the law of the
sea. In fact, according to David Anderson,
freedom of the high seas are freedoms under the law. They should be viewed increasingly as
no different from other fundamental rights of States under international law. [. . .] The
particular term ‘freedom’ is perhaps most relevant in the context of the non-exhaustive
nature of the list of freedoms of the high seas.
35
As to the second general premise, the “old problem of creeping jurisdiction” is
considered dangerous due to coastal states’ “tendency to expand the reach of their
regulations beyond 200 nautical miles”.
36 The argument according to which states
are fueled by desire for wealth and power is not novel to international relations
theories. Hence, the practice of creeping on jurisdiction would be the result of an
almost insatiable temptation to additional powers and competences over waters
adjacent to the coast. As analyzed by Richard Bilder, “any coastal state extension
of jurisdiction into the contiguous high seas, even if functionally limited, tends over
time to expand to include more claims, until it becomes the functional equivalent of a
territorial sea, in substance if not in name”.
37
The concept of creeping jurisdiction may be divided in two, according to the
nature of the expansion, whether geographical or in regulatory powers. There have
been distinctions between CJ, associated with the geographical enlargement seawards, and “thickening jurisdiction”, an increase in the activities regulated by a
coastal States within a particular maritime zone.
38 The latter would be equally old
and worrisome, as coastal states’ can be expected to permanently aim at asserting
29 Brown (1973), p. 157.
30 Gary Knight uses this expression in the context of discussions on the most adequate regime to
deep-sea mining, so as to make a point that a system of free enterprise and minimal regulation would
be best tailored for the exploitation of deep seabed minerals. In so doing, states would rely on the
“propertization” of the seabed to develop a regime that would recognize property rights over seabed
resources. See Knight (1981), p. 13.
31 Booth (1983), p. 373.
32 Lagoni (2003), p. 157.
33 Becker (2005), p. 132.
34 Gavouneli refers to coastal state’s “tendency to expand seawards”. See Gavouneli (2007), p. 59.
35 Anderson (2006), p. 345.
36 Türk (2012), p. 159.
37 Bilder (1973), p. 104.
38 Wayne (1996), p. 103.
148
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .