the natural resources therein.
112 Moreover, Kwiatkowska points out to claims by
developing states to “full and exclusive sovereign rights” over all continental shelf
resources, such as India, Mauritius, Pakistan, Seychelles, and Guyana, and worry
that such phrase could empower an ampliative interpretation that would, in its turn,
define the continental shelf as territory of those states—an understanding hardly in
accordance with UNCLOS.
Another risk would be illustrated by jurisdictional assertions over all types of
artificial islands, installations, and structures, without exception, whatever their
nature or purpose.
113 The deployment of military installations and devices on the
continental shelf would, thus, be subject to prior coastal state consent, a move that
represents a stark drawback against powerful military navies worldwide. In this
regard, Brazil assumed a leading role in seeking the expansion of coastal state
powers over the maritime zones under national jurisdiction. For that reason, the
country is labelled by Kwiatkowska as leader of the territorialists since the early
1970s, when it placed military activities on its EEZ and continental shelf under a
previous requirement of consent.
114 The territorialist approach should raise, thus,
concern as to the possibility of “further proliferation of such a practice”.
115
Brazil struck once again, following the 1988 United Nations Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
116 when it argued that
permission should be requested not only to the flag state but also to the coastal state,
in order for other states to take measures under Art. 17 (on the repression of illicit
traffic by sea) against a foreign ship assumed of illegal trafficking drugs in the EEZ
of the coastal state.
117 Brazil made a declaration to this effect, in relation to Art.
17 (11), and faced staunch objection by member states of the European Community,
who cried that the Brazilian declaration would go further than the rights accorded to
112 Id. 161.
113 Item V, Brazilian Declaration upon Signature of the UNCLOS, Montego Bay,
10 December 1982.
114 The Brazilian Government understands that the provisions of the Convention do not authorize
other States to carry out in the exclusive economic zone military exercises or maneuvers, in
particular those that imply the use of weapons or explosives, without the consent of the coastal
State. Item IV, Brazilian Declaration upon Signature of the UNCLOS, Montego Bay,
10 December 1982.
115 Kwiatkowska (1991), p. 162.
116 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, UNTS 1582, 95, Vienna, 20 December 1988.
117 Brazil staged yet another “jurisdictional crept”, regarding freedom of overflight above the EEZ
and the continental shelf, an instance of pressure endangering this accommodation. The country
requested the International Civil Aviation Organization (ICAO) to subject overflight above the EEZ
and the CS to the same conditions as those applicable not to the high seas, but to land territory and
the territorial sea. The proposal was rejected by ICAO as flagrantly contradicting UNCLOS, which
allows high seas overflight freedom for air navigation over the EEZ and the CS, Arts. 58 (1) and 78.
See ICAO Doc LC/26-WP/5-1, 4 February 1987, 26.
162
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
112 Moreover, Kwiatkowska points out to claims by
developing states to “full and exclusive sovereign rights” over all continental shelf
resources, such as India, Mauritius, Pakistan, Seychelles, and Guyana, and worry
that such phrase could empower an ampliative interpretation that would, in its turn,
define the continental shelf as territory of those states—an understanding hardly in
accordance with UNCLOS.
Another risk would be illustrated by jurisdictional assertions over all types of
artificial islands, installations, and structures, without exception, whatever their
nature or purpose.
113 The deployment of military installations and devices on the
continental shelf would, thus, be subject to prior coastal state consent, a move that
represents a stark drawback against powerful military navies worldwide. In this
regard, Brazil assumed a leading role in seeking the expansion of coastal state
powers over the maritime zones under national jurisdiction. For that reason, the
country is labelled by Kwiatkowska as leader of the territorialists since the early
1970s, when it placed military activities on its EEZ and continental shelf under a
previous requirement of consent.
114 The territorialist approach should raise, thus,
concern as to the possibility of “further proliferation of such a practice”.
115
Brazil struck once again, following the 1988 United Nations Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
116 when it argued that
permission should be requested not only to the flag state but also to the coastal state,
in order for other states to take measures under Art. 17 (on the repression of illicit
traffic by sea) against a foreign ship assumed of illegal trafficking drugs in the EEZ
of the coastal state.
117 Brazil made a declaration to this effect, in relation to Art.
17 (11), and faced staunch objection by member states of the European Community,
who cried that the Brazilian declaration would go further than the rights accorded to
112 Id. 161.
113 Item V, Brazilian Declaration upon Signature of the UNCLOS, Montego Bay,
10 December 1982.
114 The Brazilian Government understands that the provisions of the Convention do not authorize
other States to carry out in the exclusive economic zone military exercises or maneuvers, in
particular those that imply the use of weapons or explosives, without the consent of the coastal
State. Item IV, Brazilian Declaration upon Signature of the UNCLOS, Montego Bay,
10 December 1982.
115 Kwiatkowska (1991), p. 162.
116 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, UNTS 1582, 95, Vienna, 20 December 1988.
117 Brazil staged yet another “jurisdictional crept”, regarding freedom of overflight above the EEZ
and the continental shelf, an instance of pressure endangering this accommodation. The country
requested the International Civil Aviation Organization (ICAO) to subject overflight above the EEZ
and the CS to the same conditions as those applicable not to the high seas, but to land territory and
the territorial sea. The proposal was rejected by ICAO as flagrantly contradicting UNCLOS, which
allows high seas overflight freedom for air navigation over the EEZ and the CS, Arts. 58 (1) and 78.
See ICAO Doc LC/26-WP/5-1, 4 February 1987, 26.
162
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .