Despite the Convention’s restriction of coastal state claims to a few competences,
some authors alert to the still reining temptation to claim excessive rights in the EEZ
and continental shelf which are not present in the Convention.
83 The adoption of
UNCLOS was, thus, not enough to suppress unwarranted enhanced jurisdiction of
coastal states seaward, a possible reason for which could be the insufficient precision
and deliberate vagueness of UNCLOS’ provisions, which have been providing a
“springboard for coastal States to expand the prerogatives given to them over parts of
the sea”.
84 In this sense, Selden’s mare clausum would continue to haunt the law of
the sea. Whether motivated by the plastic wording of the Convention or by pursuing
domestic interests, such as security and economic growth, state practice postUNCLOS includes some examples of jurisdictional assertion over natural resources
beyond the 200-nm limit.
85 The most symbolic illustrations of current-day creeping
jurisdiction will be categorized below according to the maritime space they take
place, whether the EEZ or the continental shelf.
86
In general, there have been criticisms against the obstacles posed by the conception of the EEZ in terms of limiting the common heritage principle and emptying
freedom of scientific research in the high seas. In addition, emphasis has also been
laid on three common situations in which the EEZ and the Exclusive Fisheries Zone
(EFZ) has been extended beyond the 200-nm limit, in a kind of creeping jurisdiction
by coastal states: (i) extension of certain coastal state rights and interests related to
fisheries; (ii) extension of the coastal state right of intervention in cases of maritime
casualties and the liability regime for oil pollution damage; and (iii) extension
resulting from retreat of baselines due to sea level change or to man-made intervention in the shore, in the case of pier and port constructions.
87
Concerning the first criticism, and the role of creeping jurisdiction in the conformation of the new architecture of the law of the sea, it certainly is intriguing to face a
critique by Milenko Kreca to the creation of that zone. According to the author, the
emergence of the EEZ harmed the principle of common heritage of mankind by
emptying (on practical terms) the relevance of the principle to the international
seabed area, since most valuable living and non-living resources would come
under national jurisdiction upon the materialization of the zone.
88 In a sense, the
creation of the EEZ does shrink the size of the Area. However, the argument as a
whole is difficult to defend. Firstly, because the main causative agent of such
83 Oxman (2007), p. 830.
84 Kreca (2002), p. 1210.
85 For more on the “creeping unilateralism beyond the 200-nm limit”, see Scovazzi (2000), p. 133.
86 Recently, there have been records of coastal states’ claims to straight baselines in cases where
normal baselines could apply, a situation which resembles a jurisdiction crept and may amount to a
potential breach of UNCLOS. The most notable cases are Japan—protested by South Korea and
China; and Myanmar—protested by Bangladesh. It should be noted upfront that such cases of
straight baselines are not the crux of this work and have not, for that reason, been scrutinized here in
detail.
87 Kwiatkowska (1991), p. 167.
88 Kreca (2002), p. 1213.
6.3 Reasons for Alarm?
157
some authors alert to the still reining temptation to claim excessive rights in the EEZ
and continental shelf which are not present in the Convention.
83 The adoption of
UNCLOS was, thus, not enough to suppress unwarranted enhanced jurisdiction of
coastal states seaward, a possible reason for which could be the insufficient precision
and deliberate vagueness of UNCLOS’ provisions, which have been providing a
“springboard for coastal States to expand the prerogatives given to them over parts of
the sea”.
84 In this sense, Selden’s mare clausum would continue to haunt the law of
the sea. Whether motivated by the plastic wording of the Convention or by pursuing
domestic interests, such as security and economic growth, state practice postUNCLOS includes some examples of jurisdictional assertion over natural resources
beyond the 200-nm limit.
85 The most symbolic illustrations of current-day creeping
jurisdiction will be categorized below according to the maritime space they take
place, whether the EEZ or the continental shelf.
86
In general, there have been criticisms against the obstacles posed by the conception of the EEZ in terms of limiting the common heritage principle and emptying
freedom of scientific research in the high seas. In addition, emphasis has also been
laid on three common situations in which the EEZ and the Exclusive Fisheries Zone
(EFZ) has been extended beyond the 200-nm limit, in a kind of creeping jurisdiction
by coastal states: (i) extension of certain coastal state rights and interests related to
fisheries; (ii) extension of the coastal state right of intervention in cases of maritime
casualties and the liability regime for oil pollution damage; and (iii) extension
resulting from retreat of baselines due to sea level change or to man-made intervention in the shore, in the case of pier and port constructions.
87
Concerning the first criticism, and the role of creeping jurisdiction in the conformation of the new architecture of the law of the sea, it certainly is intriguing to face a
critique by Milenko Kreca to the creation of that zone. According to the author, the
emergence of the EEZ harmed the principle of common heritage of mankind by
emptying (on practical terms) the relevance of the principle to the international
seabed area, since most valuable living and non-living resources would come
under national jurisdiction upon the materialization of the zone.
88 In a sense, the
creation of the EEZ does shrink the size of the Area. However, the argument as a
whole is difficult to defend. Firstly, because the main causative agent of such
83 Oxman (2007), p. 830.
84 Kreca (2002), p. 1210.
85 For more on the “creeping unilateralism beyond the 200-nm limit”, see Scovazzi (2000), p. 133.
86 Recently, there have been records of coastal states’ claims to straight baselines in cases where
normal baselines could apply, a situation which resembles a jurisdiction crept and may amount to a
potential breach of UNCLOS. The most notable cases are Japan—protested by South Korea and
China; and Myanmar—protested by Bangladesh. It should be noted upfront that such cases of
straight baselines are not the crux of this work and have not, for that reason, been scrutinized here in
detail.
87 Kwiatkowska (1991), p. 167.
88 Kreca (2002), p. 1213.
6.3 Reasons for Alarm?
157