extra rights over maritime zones under national jurisdiction by incrementing the
range of activities falling under domestic regulation, without consultation and/or
agreement of other states.
Besides, the phenomenon of creeping jurisdiction may be also seen as operating
in two different directions: in favor of coastal states or the international community.
Erik Franckx labels the latter “creeping common heritage”,
39 which occurred when
sovereignty over the Area, which corresponds to extremely large portions of the
ocean, was forbidden to individual states by UNCLOS Art. 137 (1), on the legal
status of the Area and its resources. In a rather poetical sense, it could be said that
mankind has crept on jurisdiction over the deep seabed through the adoption of the
common heritage principle, analyzed supra, so as to prevent the exclusive appropriation of the seabed by technically developed states.
Ex positis, one may righteously repudiate unilateral excessive claims in the law of
the sea, having, nonetheless, in mind that not all jurisdictional assertions over the
ocean are the same, nor can they be subsumed to the criteria above. In fact, there are
some problems with the way in which literature examines the issue of creeping
jurisdiction: (1) all kinds of jurisdictional assertions in confrontation with customary
or treaty law are analyzed with the same negative lenses, what could lead to
prejudices on coastal states’ role in promoting environmental protection on the
continental shelf within and beyond 200 nm; (2) jurisdictional assertions pre- and
post-UNCLOS are condemned under the same standards, for being unilateral violations of existing law; (3) jurisdictional claims are seen as an insatiable and uncontrollable temptation for more territory or even as an irrational reaction against the
ocean policies of state A or B—a view that fails to grasp the complexity of the
practice.
40
6.3 Reasons for Alarm?
In international law, there is radical opposition to coastal state’s jurisdictional
expansionism oceanward (or the territorialization of the seas), according to whom
both creeping and thickening jurisdiction represent an immediate danger to the
stability of the public order of the oceans. The layout of flag states’ powers in the
high seas, pursuant to UNCLOS, would be imperiled, amongst other reasons,
because coastal states have increasingly challenged those powers and claimed
additional rights, such as that of granting permit for foreign navy vessels to enter
their EEZ, the prohibition of military exercises in the coastal state’s EEZ without
39 Franckx (2005), p. 119.
40 During UNCLOS negotiations, there was even room for an absurd view that “Latin-American
countries moved towards 200 nm territorial seas more because of the United States stubborn
opposition to the 200 nm limit, than out of true national self-interest”. Loring (1971), p. 446.
That view falls short of a frontal insult to Latin American states’ ability to determine and pursue
their own strategic interests on the international stage.
6.3 Reasons for Alarm?
149
range of activities falling under domestic regulation, without consultation and/or
agreement of other states.
Besides, the phenomenon of creeping jurisdiction may be also seen as operating
in two different directions: in favor of coastal states or the international community.
Erik Franckx labels the latter “creeping common heritage”,
39 which occurred when
sovereignty over the Area, which corresponds to extremely large portions of the
ocean, was forbidden to individual states by UNCLOS Art. 137 (1), on the legal
status of the Area and its resources. In a rather poetical sense, it could be said that
mankind has crept on jurisdiction over the deep seabed through the adoption of the
common heritage principle, analyzed supra, so as to prevent the exclusive appropriation of the seabed by technically developed states.
Ex positis, one may righteously repudiate unilateral excessive claims in the law of
the sea, having, nonetheless, in mind that not all jurisdictional assertions over the
ocean are the same, nor can they be subsumed to the criteria above. In fact, there are
some problems with the way in which literature examines the issue of creeping
jurisdiction: (1) all kinds of jurisdictional assertions in confrontation with customary
or treaty law are analyzed with the same negative lenses, what could lead to
prejudices on coastal states’ role in promoting environmental protection on the
continental shelf within and beyond 200 nm; (2) jurisdictional assertions pre- and
post-UNCLOS are condemned under the same standards, for being unilateral violations of existing law; (3) jurisdictional claims are seen as an insatiable and uncontrollable temptation for more territory or even as an irrational reaction against the
ocean policies of state A or B—a view that fails to grasp the complexity of the
practice.
40
6.3 Reasons for Alarm?
In international law, there is radical opposition to coastal state’s jurisdictional
expansionism oceanward (or the territorialization of the seas), according to whom
both creeping and thickening jurisdiction represent an immediate danger to the
stability of the public order of the oceans. The layout of flag states’ powers in the
high seas, pursuant to UNCLOS, would be imperiled, amongst other reasons,
because coastal states have increasingly challenged those powers and claimed
additional rights, such as that of granting permit for foreign navy vessels to enter
their EEZ, the prohibition of military exercises in the coastal state’s EEZ without
39 Franckx (2005), p. 119.
40 During UNCLOS negotiations, there was even room for an absurd view that “Latin-American
countries moved towards 200 nm territorial seas more because of the United States stubborn
opposition to the 200 nm limit, than out of true national self-interest”. Loring (1971), p. 446.
That view falls short of a frontal insult to Latin American states’ ability to determine and pursue
their own strategic interests on the international stage.
6.3 Reasons for Alarm?
149