that people do not notice”,
123 which emphasizes the surreptitious way in which the
jurisdictional assertions by coastal states would occur. It would perhaps make sense
to describe some excessive claims effected after the adoption of UNCLOS, as
analyzed supra, but it fails to comprehend the systematic opposition of coastal states
to the dual division of the oceans prior to 1982.
It is no novelty that states performing the staunchest objection to creeping
jurisdiction are mainly located in Europe and North America.
124 Coincidently,
authors criticizing the movement of creeping on jurisdiction prior and after
UNCLOS originate or have been trained in those regions. It lies beyond the purpose
of this work to assess whether such protestation would be the reflex of a hegemonic
narrative, in which a particular actor “seeks to make its particular project or interest
or pursuit seem the general project or interest”.
125 It does seem nonetheless plausible
that a phenomenon of “universalizing” freedom of navigation and demonizing
creeping jurisdiction without distinction between pre- and post-UNCLOS eras
indicates the defense of a particular political order of the oceans. In other words,
powerful proponents invoke universal values or posit to act on behalf of the entire
“international community”, thereby equating all jurisdictional assertions, a common
strategy observed throughout the history of international law.
Ironically, the creator of the expression “creeping jurisdiction” was an American.
When John Craven coined the expression during the 1960s, the United States Navy
revealed profound concern with jurisdictional assertions by coastal states to rights
not just over the seafloor and subsoils of the continental shelf, but the water column.
Only then, the alarm was sounded. In other words, as long as the unilateral expansion
seawards was limited to the seabed, there was little reason to bother—particularly
because the Americans are credited to having set the square one in shaping a new
division of the oceans with the Truman Proclamations. However, once territorialization meant potential restrictions to freedom of navigation (only potential), the
phenomenon triggered uneasiness amongst some countries.
In this case, perhaps the expression “universalization vocabulary”, by Martti
Koskenniemi, could help analyze the reiterate use of the expression “creeping
jurisdiction” in law of the sea books and manuals. Could it be a universalized
vocabulary, with which maritime powers have sought to describe their own social
items and values as universal characteristics or objectives of the law?
126 Maritime
powers have been claiming even after the adoption of the Montego Bay Convention
to have the correct understanding of significance and scope of functional jurisdiction
123 MacMillan Dictionary. Entry “Creeping”.
124 The United Kingdom and The Netherlands, for instance, oppose the interpretation of UNCLOS
according to which coastal states may forbid military exercises on their EEZs. On another level, the
United States were the only country to present a note verbale to the CLCS pending the analysis of
the Brazilian submission for delineating the outer limits of the continental shelf. Such objection
shows concerns by the naval superpower with potential extended territorial jurisdiction of the
Brazilian state over the South Atlantic Ocean.
125 Koskenniemi (2005), p. 115.
126 Koskenniemi (2012), p. 311.
6.4 Coastal States’ Jurisdictional Expansion from an Environmental Perspective:. . .
165
123 which emphasizes the surreptitious way in which the
jurisdictional assertions by coastal states would occur. It would perhaps make sense
to describe some excessive claims effected after the adoption of UNCLOS, as
analyzed supra, but it fails to comprehend the systematic opposition of coastal states
to the dual division of the oceans prior to 1982.
It is no novelty that states performing the staunchest objection to creeping
jurisdiction are mainly located in Europe and North America.
124 Coincidently,
authors criticizing the movement of creeping on jurisdiction prior and after
UNCLOS originate or have been trained in those regions. It lies beyond the purpose
of this work to assess whether such protestation would be the reflex of a hegemonic
narrative, in which a particular actor “seeks to make its particular project or interest
or pursuit seem the general project or interest”.
125 It does seem nonetheless plausible
that a phenomenon of “universalizing” freedom of navigation and demonizing
creeping jurisdiction without distinction between pre- and post-UNCLOS eras
indicates the defense of a particular political order of the oceans. In other words,
powerful proponents invoke universal values or posit to act on behalf of the entire
“international community”, thereby equating all jurisdictional assertions, a common
strategy observed throughout the history of international law.
Ironically, the creator of the expression “creeping jurisdiction” was an American.
When John Craven coined the expression during the 1960s, the United States Navy
revealed profound concern with jurisdictional assertions by coastal states to rights
not just over the seafloor and subsoils of the continental shelf, but the water column.
Only then, the alarm was sounded. In other words, as long as the unilateral expansion
seawards was limited to the seabed, there was little reason to bother—particularly
because the Americans are credited to having set the square one in shaping a new
division of the oceans with the Truman Proclamations. However, once territorialization meant potential restrictions to freedom of navigation (only potential), the
phenomenon triggered uneasiness amongst some countries.
In this case, perhaps the expression “universalization vocabulary”, by Martti
Koskenniemi, could help analyze the reiterate use of the expression “creeping
jurisdiction” in law of the sea books and manuals. Could it be a universalized
vocabulary, with which maritime powers have sought to describe their own social
items and values as universal characteristics or objectives of the law?
126 Maritime
powers have been claiming even after the adoption of the Montego Bay Convention
to have the correct understanding of significance and scope of functional jurisdiction
123 MacMillan Dictionary. Entry “Creeping”.
124 The United Kingdom and The Netherlands, for instance, oppose the interpretation of UNCLOS
according to which coastal states may forbid military exercises on their EEZs. On another level, the
United States were the only country to present a note verbale to the CLCS pending the analysis of
the Brazilian submission for delineating the outer limits of the continental shelf. Such objection
shows concerns by the naval superpower with potential extended territorial jurisdiction of the
Brazilian state over the South Atlantic Ocean.
125 Koskenniemi (2005), p. 115.
126 Koskenniemi (2012), p. 311.
6.4 Coastal States’ Jurisdictional Expansion from an Environmental Perspective:. . .
165