of resources and augmented economic development, particularly in light of hazards
posed by abusive extractive practices and ecological disturbances.
Regarding substance, the Montevideo Declaration contains provisions asserting a
variety of rights to coastal states over the 200-nm zone. Firstly, a provision affirming
power to enforce and to exercise control over natural resources of the adjacent seas.
Secondly, a paragraph on jurisdiction to legislate and to enact regulatory measures
to achieve the goals of conservation and prudent use of resources. Thirdly, the right
to delimit their maritime sovereignty and jurisdiction in conformity with their own
geographic and geological characteristics. Finally, the right to explore, conserve and
exploit living and non-living resources of the water column and continental shelf.
Despite the jurisdictional enlargement effected in the Declaration, there are not
enough elements to permit the conclusion that countries such as Argentina, Brazil
or Chile interpreted the Montevideo Declaration in order to restrict freedom of
navigation of other states to that enjoyed within the territorial sea, i.e. right of
innocent passage. In fact, the exercise of such expanded jurisdiction was to be
“without prejudice to freedom of navigation by ships and overflying by aircraft of
any flag”.
62 Similarly to the 1952 Santiago Declaration, the Montevideo Declaration
consisted not of a projection of full territoriality over the oceans, but an attempt to
exercise exclusive jurisdiction over some aspects of seas adjacent to the coast.
A bolder move was undertaken by some Latin American countries that unilaterally declared a 200-nm territorial sea, possibly encouraged by the sub-regional
concertation on the topic of territorial waters. It was the case of Ecuador,
63 Panama,
64 and Brazil,
65 who established a territorial sea strictu sensu, i.e. for all legal
purposes. In the Brazilian case, the state understood that the special interest of
coastal states in maintaining productivity of living resources in maritime zones
adjacent to their coasts could only be effectively protected by exercising sovereignty,
and that each state had competence to delimit its territorial sea, particularly in the
absence of an internationally agreed treaty on maritime jurisdiction. Thus, in the
deceased Decree-Law, the Brazilian state was given exclusive right to regulate
fisheries and activities related to marine research and exploration, both in the
water column and the continental shelf.
66 Those were unquestionably excessive
claims, due to the intention to regulate every possible use of the 200-nm belt adjacent
to the coast, not just a specific economic or ecologic use, and the potential legal
uncertainties for international navigation and trade.
Other types of 200-nm claims were headed by Nicaragua, Argentina, Uruguay,
and Costa Rica, albeit with little in common between each other. Nicaragua claimed
solely a 200-nm “national fishing zone”,
67 whereas Argentina asserted sovereignty
62 Id. 1083.
63 Republic of Ecuador, Decree no 1542, 10 November 1966.
64 Republic of Panama, Act no 31, 02 February 1967.
65 Federative Republic of Brazil, Decree-Law no 1.098, 25 March 1970.
66 Art. 4 of the repealed Decree-Law no 1.098, 1970.
67 Executive Decree no 1-L, 05 April 1965.
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6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
posed by abusive extractive practices and ecological disturbances.
Regarding substance, the Montevideo Declaration contains provisions asserting a
variety of rights to coastal states over the 200-nm zone. Firstly, a provision affirming
power to enforce and to exercise control over natural resources of the adjacent seas.
Secondly, a paragraph on jurisdiction to legislate and to enact regulatory measures
to achieve the goals of conservation and prudent use of resources. Thirdly, the right
to delimit their maritime sovereignty and jurisdiction in conformity with their own
geographic and geological characteristics. Finally, the right to explore, conserve and
exploit living and non-living resources of the water column and continental shelf.
Despite the jurisdictional enlargement effected in the Declaration, there are not
enough elements to permit the conclusion that countries such as Argentina, Brazil
or Chile interpreted the Montevideo Declaration in order to restrict freedom of
navigation of other states to that enjoyed within the territorial sea, i.e. right of
innocent passage. In fact, the exercise of such expanded jurisdiction was to be
“without prejudice to freedom of navigation by ships and overflying by aircraft of
any flag”.
62 Similarly to the 1952 Santiago Declaration, the Montevideo Declaration
consisted not of a projection of full territoriality over the oceans, but an attempt to
exercise exclusive jurisdiction over some aspects of seas adjacent to the coast.
A bolder move was undertaken by some Latin American countries that unilaterally declared a 200-nm territorial sea, possibly encouraged by the sub-regional
concertation on the topic of territorial waters. It was the case of Ecuador,
63 Panama,
64 and Brazil,
65 who established a territorial sea strictu sensu, i.e. for all legal
purposes. In the Brazilian case, the state understood that the special interest of
coastal states in maintaining productivity of living resources in maritime zones
adjacent to their coasts could only be effectively protected by exercising sovereignty,
and that each state had competence to delimit its territorial sea, particularly in the
absence of an internationally agreed treaty on maritime jurisdiction. Thus, in the
deceased Decree-Law, the Brazilian state was given exclusive right to regulate
fisheries and activities related to marine research and exploration, both in the
water column and the continental shelf.
66 Those were unquestionably excessive
claims, due to the intention to regulate every possible use of the 200-nm belt adjacent
to the coast, not just a specific economic or ecologic use, and the potential legal
uncertainties for international navigation and trade.
Other types of 200-nm claims were headed by Nicaragua, Argentina, Uruguay,
and Costa Rica, albeit with little in common between each other. Nicaragua claimed
solely a 200-nm “national fishing zone”,
67 whereas Argentina asserted sovereignty
62 Id. 1083.
63 Republic of Ecuador, Decree no 1542, 10 November 1966.
64 Republic of Panama, Act no 31, 02 February 1967.
65 Federative Republic of Brazil, Decree-Law no 1.098, 25 March 1970.
66 Art. 4 of the repealed Decree-Law no 1.098, 1970.
67 Executive Decree no 1-L, 05 April 1965.
154
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .