consent, or the control of marine hydrographic surveying in the EEZ. In the light of
the grounding premises underlined previously, alarmist law of the sea practitioners
fear that the material balance of rights struck for the regimes of the EEZ and the
continental shelf within and beyond 200 nm be progressively eroded to a point in
which traditional freedoms of the seas become “mere exceptions to coastal state
sovereignty”.
41
As early as 1956, Josef Kunz heavily criticized the so-called “doctrine and
practice of the continental shelf”, understood as the combination of different claims
in character and substance to the seafloor, which purportedly led to a situation of
confusion and abuse by coastal states. Kunz was of the opinion that unilateral
proclamations of sovereignty over the seafloor and (sometimes) superjacent waters,
sounded the death knell on freedom of the seas.
42 In line with that argument, the
author criticized what he labeled the “triumphant upsurge of national sovereignty”
against the long-established customary principle of freedom of the high seas. Kunz’s
view may have been defeated in the international arena, as the 1958 CSC codified
coastal state jurisdiction over continental shelf resources and activities, but it has
nonetheless influenced subsequent generations of international lawyers, more worried with securing navigational freedoms than building a system of fair access to
natural oceanic riches. It is now imperative to examine state practice in pre- and postUNCLOS days, in order to determine whether the expansion of coastal state’s
jurisdiction is as nefarious as doomed and whether there have been reasons for
alarm or not.
6.3.1 Pre-UNCLOS State Practice
Such an opposition was sponsored by both developed and developing countries, who
anticipated benefits from exclusive access to marine natural resources in their shore
vicinities. Nonetheless, differing intensities of rejection (or of “jurisdictional crept”)
occurred. Whilst maritime states, such as the United States, proclaimed exclusive
jurisdiction over natural resources of the seabed and subsoil of continental shelf up to
a depth of 600 ft (approximately 182 m),
43 several developing coastal states went a
step further and claimed jurisdiction over marine resources of the seafloor, subsoil,
water column, and airspace up to 200 nm from the baselines.
The practice of Latin American states in this regard merits a detailed analysis.
44 In
fact, the systematic opposition of Latin American countries to the 3 nm territorial
41 Türk (2012), p. 161.
42 Kunz (1958), p. 829.
43 Harry S. Truman, Proclamation 2667—Policy of the United States with Respect to the Natural
Resources of the Subsoil and Sea Bed of the Continental Shelf, September 28, 1945.
44 Outside the Latin American scope, to quote but one example, the cod wars between the UK and
Iceland, between 1958 and 1975, symbolized the battle between David and Goliath, coastal and
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6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
the grounding premises underlined previously, alarmist law of the sea practitioners
fear that the material balance of rights struck for the regimes of the EEZ and the
continental shelf within and beyond 200 nm be progressively eroded to a point in
which traditional freedoms of the seas become “mere exceptions to coastal state
sovereignty”.
41
As early as 1956, Josef Kunz heavily criticized the so-called “doctrine and
practice of the continental shelf”, understood as the combination of different claims
in character and substance to the seafloor, which purportedly led to a situation of
confusion and abuse by coastal states. Kunz was of the opinion that unilateral
proclamations of sovereignty over the seafloor and (sometimes) superjacent waters,
sounded the death knell on freedom of the seas.
42 In line with that argument, the
author criticized what he labeled the “triumphant upsurge of national sovereignty”
against the long-established customary principle of freedom of the high seas. Kunz’s
view may have been defeated in the international arena, as the 1958 CSC codified
coastal state jurisdiction over continental shelf resources and activities, but it has
nonetheless influenced subsequent generations of international lawyers, more worried with securing navigational freedoms than building a system of fair access to
natural oceanic riches. It is now imperative to examine state practice in pre- and postUNCLOS days, in order to determine whether the expansion of coastal state’s
jurisdiction is as nefarious as doomed and whether there have been reasons for
alarm or not.
6.3.1 Pre-UNCLOS State Practice
Such an opposition was sponsored by both developed and developing countries, who
anticipated benefits from exclusive access to marine natural resources in their shore
vicinities. Nonetheless, differing intensities of rejection (or of “jurisdictional crept”)
occurred. Whilst maritime states, such as the United States, proclaimed exclusive
jurisdiction over natural resources of the seabed and subsoil of continental shelf up to
a depth of 600 ft (approximately 182 m),
43 several developing coastal states went a
step further and claimed jurisdiction over marine resources of the seafloor, subsoil,
water column, and airspace up to 200 nm from the baselines.
The practice of Latin American states in this regard merits a detailed analysis.
44 In
fact, the systematic opposition of Latin American countries to the 3 nm territorial
41 Türk (2012), p. 161.
42 Kunz (1958), p. 829.
43 Harry S. Truman, Proclamation 2667—Policy of the United States with Respect to the Natural
Resources of the Subsoil and Sea Bed of the Continental Shelf, September 28, 1945.
44 Outside the Latin American scope, to quote but one example, the cod wars between the UK and
Iceland, between 1958 and 1975, symbolized the battle between David and Goliath, coastal and
150
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .