Those assertions merit some questioning, particularly the last one, concerning the
allegedly cloaked and deceiving nature of jurisdictional claims aimed at preserving
and protecting the marine environment. With the intention of offering a plausible
counterpoint to those claims and advancing the study of environmental jurisdiction
in the law of the sea, this work puts forwards the following theses: the wholesale use
of the phrase “creeping jurisdiction” to refer to every jurisdictional assertion over the
sea should be avoided by international lawyers; secondly, the assertion of enlarged
jurisdiction seawards, if done on a systematic and collective basis, may amount to a
call for change in the international rules; thirdly, while the exercise of increased
environmental powers in areas within national jurisdiction may be interpreted as
inconsistent with UNCLOS, such a practice should not be dismissed as illegal a
priori. Those theses are further detailed below.
6.4.1 Avoiding the Wholesale Use of the Phrase “Creeping
Jurisdiction”
To being with, the widespread phrase known as “creeping jurisdiction” does not
neutrally depict the expansionist claims staged by coastal states prior to the adoption
of UNCLOS. That concept is value-laden and describes an inherently wicked
practice, which may not be the case with the systematic opposition to the ordre
publique of the oceans before 1982. Anne Peters, in a sharp critique against the once
fashionable alarmism amongst internationalists as to the “fragmentation” of international law, pondered that
the term ‘fragmentation’ is inevitably descriptive-evaluative, and thus loaded. ‘Fragmentation’ has a predominantly negative connotation, it is a pejorative term (rather than diversity,
specialization, or pluralism). Finally, it is a term which describes not only a legal process in
the real world of law but has also been a label for the accompanying discourse (mostly
among academics, less among judges, and even less among political law-making actors).
121
Replace the phrase “fragmentation” by “creeping jurisdiction” and the resulting
text makes as much sense as the original one. In fact, the notion of creeping
jurisdiction is descriptive-evaluative, assuming a rather negative connotation. It is
a term that describes not just a behavior by coastal states, but has been used as a label
to raise awareness to an allegedly disorder-creating movement in the law of
the sea—a critique that took the pre-UNCLOS order for valid and agreed upon by
the international community in its entirety, which was by far not the case. In fact, the
verb “to creep” in the language of Shakespeare means “to enter or advance gradually
so as to be almost unnoticed”. As an adjective, it means “advancing by slow,
imperceptible degrees”.
122 A similar meaning includes “happening very slowly so
121 Peters (2016), p. 4.
122 Merriam-Webster. Entry “Creeping”.
164
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
allegedly cloaked and deceiving nature of jurisdictional claims aimed at preserving
and protecting the marine environment. With the intention of offering a plausible
counterpoint to those claims and advancing the study of environmental jurisdiction
in the law of the sea, this work puts forwards the following theses: the wholesale use
of the phrase “creeping jurisdiction” to refer to every jurisdictional assertion over the
sea should be avoided by international lawyers; secondly, the assertion of enlarged
jurisdiction seawards, if done on a systematic and collective basis, may amount to a
call for change in the international rules; thirdly, while the exercise of increased
environmental powers in areas within national jurisdiction may be interpreted as
inconsistent with UNCLOS, such a practice should not be dismissed as illegal a
priori. Those theses are further detailed below.
6.4.1 Avoiding the Wholesale Use of the Phrase “Creeping
Jurisdiction”
To being with, the widespread phrase known as “creeping jurisdiction” does not
neutrally depict the expansionist claims staged by coastal states prior to the adoption
of UNCLOS. That concept is value-laden and describes an inherently wicked
practice, which may not be the case with the systematic opposition to the ordre
publique of the oceans before 1982. Anne Peters, in a sharp critique against the once
fashionable alarmism amongst internationalists as to the “fragmentation” of international law, pondered that
the term ‘fragmentation’ is inevitably descriptive-evaluative, and thus loaded. ‘Fragmentation’ has a predominantly negative connotation, it is a pejorative term (rather than diversity,
specialization, or pluralism). Finally, it is a term which describes not only a legal process in
the real world of law but has also been a label for the accompanying discourse (mostly
among academics, less among judges, and even less among political law-making actors).
121
Replace the phrase “fragmentation” by “creeping jurisdiction” and the resulting
text makes as much sense as the original one. In fact, the notion of creeping
jurisdiction is descriptive-evaluative, assuming a rather negative connotation. It is
a term that describes not just a behavior by coastal states, but has been used as a label
to raise awareness to an allegedly disorder-creating movement in the law of
the sea—a critique that took the pre-UNCLOS order for valid and agreed upon by
the international community in its entirety, which was by far not the case. In fact, the
verb “to creep” in the language of Shakespeare means “to enter or advance gradually
so as to be almost unnoticed”. As an adjective, it means “advancing by slow,
imperceptible degrees”.
122 A similar meaning includes “happening very slowly so
121 Peters (2016), p. 4.
122 Merriam-Webster. Entry “Creeping”.
164
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .