On the multilateral level, coastal states have engaged in claims that equally
restrict access by other states to living resources beyond the 200 nm limit. Frankcx
identifies two particular situations on this regard. Firstly, the creation of “pockets of
high seas”, surrounded by the maritime zones of coastal states. For instance, the
“Donut hole” in the Bering Sea, the Peanut hole in the Sea of Okhotsk, and the
Loophole in the Barents Sea. In all “holes”, the relevant coastal states have reached
arrangements to settle the dispute. Secondly, the signature of agreements on straddling and highly migratory fish stock by a larger number of states that expressly
place additional competences on coastal states.
A case in point is the “Galapagos Agreement” concluded between Chile, Colombia, Ecuador and Peru, aiming at the protection and conservation of high seas
fisheries of the Southeast Pacific Ocean.
99 The basis for that agreement was the
1952 Santiago Declaration, which recognized the coastal state’s obligation to prevent excessive exploitation of natural resources even “outside the reach of their
national jurisdiction”. The rationale behind the Agreement is that:
The uncontrolled exploitation of living marine resources in high seas areas adjacent to zones
under national jurisdiction represents a threat to the conservation and sustainable use of said
resources, as well as to fish populations dependent on or associated with them, and it may
undermine the effectiveness of measures adopted by the coastal States with respect to the
same species, within their 200-mile zones.
100
There have also been pledges that the 1995 UNFSA has crept on jurisdiction of
the high seas by allocating extra powers to coastal states, namely with respect to
straddling and highly migratory fish populations. Such powers were not in accordance with UNCLOS provision on the issue.
101 Besides, for some scholars, the
adoption of the 2001 Convention on the Protection of the Underwater Cultural
Heritage
102 would have further confirmed the continuous “territorial expansion” of
coastal states by granting them the right to prohibit or authorize any activity on
underwater cultural heritage located on its EEZ or continental shelf.
103 The fact such
a right is nowhere present at UNCLOS worries parcel of the international legal
scholarship.
104
99 2000 Framework Agreement for the Conservation of the Living Marine Resources of the High
Seas of the South Pacific. The Agreement is not in force.
100 Galapagos Agreement, 2000, Preamble.
101 See Zumwalt (1997), p. 35.
102 Convention on the Protection of the Underwater Cultural Heritage, UNTS 2562, signed in Paris,
2 November 2001. Brazil is not a party to the Convention.
103 Art. 2 (2) of the 2001 UNESCO Convention, on Protection of underwater cultural heritage in the
exclusive economic zone and on the continental shelf.
104 The alarm had already been sounded by Barbara Kwiatkowska, according to whom there were
several risks stemming from creeping jurisdiction over underwater cultural and archaeological
heritage found on the coastal State’s continental shelf within and beyond 200 nm. Claims made
by Cape Verde, Australia, Ireland, Spain, Norway and the Seychelles were a clear confrontation
with UNCLOS Art. 303 (2). According to this provision, removal of archaeological objects located
on a coastal State’s contiguous zone without approval by the affected State would amount to a
160
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
restrict access by other states to living resources beyond the 200 nm limit. Frankcx
identifies two particular situations on this regard. Firstly, the creation of “pockets of
high seas”, surrounded by the maritime zones of coastal states. For instance, the
“Donut hole” in the Bering Sea, the Peanut hole in the Sea of Okhotsk, and the
Loophole in the Barents Sea. In all “holes”, the relevant coastal states have reached
arrangements to settle the dispute. Secondly, the signature of agreements on straddling and highly migratory fish stock by a larger number of states that expressly
place additional competences on coastal states.
A case in point is the “Galapagos Agreement” concluded between Chile, Colombia, Ecuador and Peru, aiming at the protection and conservation of high seas
fisheries of the Southeast Pacific Ocean.
99 The basis for that agreement was the
1952 Santiago Declaration, which recognized the coastal state’s obligation to prevent excessive exploitation of natural resources even “outside the reach of their
national jurisdiction”. The rationale behind the Agreement is that:
The uncontrolled exploitation of living marine resources in high seas areas adjacent to zones
under national jurisdiction represents a threat to the conservation and sustainable use of said
resources, as well as to fish populations dependent on or associated with them, and it may
undermine the effectiveness of measures adopted by the coastal States with respect to the
same species, within their 200-mile zones.
100
There have also been pledges that the 1995 UNFSA has crept on jurisdiction of
the high seas by allocating extra powers to coastal states, namely with respect to
straddling and highly migratory fish populations. Such powers were not in accordance with UNCLOS provision on the issue.
101 Besides, for some scholars, the
adoption of the 2001 Convention on the Protection of the Underwater Cultural
Heritage
102 would have further confirmed the continuous “territorial expansion” of
coastal states by granting them the right to prohibit or authorize any activity on
underwater cultural heritage located on its EEZ or continental shelf.
103 The fact such
a right is nowhere present at UNCLOS worries parcel of the international legal
scholarship.
104
99 2000 Framework Agreement for the Conservation of the Living Marine Resources of the High
Seas of the South Pacific. The Agreement is not in force.
100 Galapagos Agreement, 2000, Preamble.
101 See Zumwalt (1997), p. 35.
102 Convention on the Protection of the Underwater Cultural Heritage, UNTS 2562, signed in Paris,
2 November 2001. Brazil is not a party to the Convention.
103 Art. 2 (2) of the 2001 UNESCO Convention, on Protection of underwater cultural heritage in the
exclusive economic zone and on the continental shelf.
104 The alarm had already been sounded by Barbara Kwiatkowska, according to whom there were
several risks stemming from creeping jurisdiction over underwater cultural and archaeological
heritage found on the coastal State’s continental shelf within and beyond 200 nm. Claims made
by Cape Verde, Australia, Ireland, Spain, Norway and the Seychelles were a clear confrontation
with UNCLOS Art. 303 (2). According to this provision, removal of archaeological objects located
on a coastal State’s contiguous zone without approval by the affected State would amount to a
160
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .