rules in the law of the sea. Such understating is expected to be universal, as it derives
from human nature and human reason—in a dangerous process of naturalizing legal
norms. This view is authoritarian, as it denies the plurality of topoi based on which
international legal argumentation is made possible.
127 One of the problems lie, thus,
on the judgmental nature of the writings and legal analyses about Latin American
leadership in “creeping” on jurisdiction in the law of the sea. This view ignores that
international law has always been and will continue to be, in essence, a battlefield for
competing understandings and opposing interpretations of certain rules—functional
jurisdiction in the law of the sea being no exception.
6.4.2 Asserting Jurisdiction as a Means of Pushing
for Changes in the Law
Secondly, in no sense is the individual violation of international norms seen as
regular means to realize state’s particular self-interests. However, if states systematically and on a collective basis object specific treaty provisions or customary rules,
then the behavior acquires a broader meaning—that of a call for renewed balance
between powers, rights and duties on the international stage.
128 With this in mind,
the opposition staged by several countries (various Latin American amongst them)
against the traditional 3 nm territorial sea between the 1940s and the adoption of
UNCLOS amounts to a violation that is not at the same level of other punctual
breaches effected post-UNCLOS. There is a difference, if not in legal, at least in
moral terms, between the “expansionist movement” prior to 1982 and recent individual, excessive jurisdictional claims. First, the pre-UNCLOS opposition does not
127 A rhetorical reading of international law sees moral values and judgments behind the pretended
assertiveness of positive law and focuses on the study of the so-called topoi, or places, or cultural
(relative) elements, which influence the perception of law that a nation builds. On the legal level,
Rhetoric as a methodology originates from the rethorical turn, in light of the limitations faced by
the Kelsenian objectivist theory of law. At that time, Theodor Viehweg emerged as one of the main
exponents of the argumentative theory, conceiving Jurisprudence, object of legal science, as a
procedure for discussing problems. For the rhetorical reasoning, the starting line is no longer the
blackletter of the law, but the controversial principles, or topoi, that directly influence legal
interpretation. This makes Rhetoric known for operating in the field of legitimacy (not of positive
legality), in which it seeks the acceptance of certain world views. Viehweg’s considerations do not
assume a cogent nature, as it happens with the legal positivism, since they are located in the domain
of dubium, the uncertain. According to Viehweg, Topics would be a technique of thinking for
problems, inspired and developed by rhetoric. See Viehweg (2007), p. 149.
128 For Goldsmith and Posner, “every state act that is inconsistent with existing international law is
open to two interpretations. First, the act might be said to be a violation of international law by a
state that intends only to take advantage of other, compliant states. Second, the act might be said to
be a proposal for revision of existing international law; the state acts inconsistently with international law in an effort to change it, to stimulate a new equilibrium that better serves its interests and,
in the usual case, the interests of other states that have sufficient power and influence.” See
Goldsmith and Posner (2005), p. 197.
166
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
from human nature and human reason—in a dangerous process of naturalizing legal
norms. This view is authoritarian, as it denies the plurality of topoi based on which
international legal argumentation is made possible.
127 One of the problems lie, thus,
on the judgmental nature of the writings and legal analyses about Latin American
leadership in “creeping” on jurisdiction in the law of the sea. This view ignores that
international law has always been and will continue to be, in essence, a battlefield for
competing understandings and opposing interpretations of certain rules—functional
jurisdiction in the law of the sea being no exception.
6.4.2 Asserting Jurisdiction as a Means of Pushing
for Changes in the Law
Secondly, in no sense is the individual violation of international norms seen as
regular means to realize state’s particular self-interests. However, if states systematically and on a collective basis object specific treaty provisions or customary rules,
then the behavior acquires a broader meaning—that of a call for renewed balance
between powers, rights and duties on the international stage.
128 With this in mind,
the opposition staged by several countries (various Latin American amongst them)
against the traditional 3 nm territorial sea between the 1940s and the adoption of
UNCLOS amounts to a violation that is not at the same level of other punctual
breaches effected post-UNCLOS. There is a difference, if not in legal, at least in
moral terms, between the “expansionist movement” prior to 1982 and recent individual, excessive jurisdictional claims. First, the pre-UNCLOS opposition does not
127 A rhetorical reading of international law sees moral values and judgments behind the pretended
assertiveness of positive law and focuses on the study of the so-called topoi, or places, or cultural
(relative) elements, which influence the perception of law that a nation builds. On the legal level,
Rhetoric as a methodology originates from the rethorical turn, in light of the limitations faced by
the Kelsenian objectivist theory of law. At that time, Theodor Viehweg emerged as one of the main
exponents of the argumentative theory, conceiving Jurisprudence, object of legal science, as a
procedure for discussing problems. For the rhetorical reasoning, the starting line is no longer the
blackletter of the law, but the controversial principles, or topoi, that directly influence legal
interpretation. This makes Rhetoric known for operating in the field of legitimacy (not of positive
legality), in which it seeks the acceptance of certain world views. Viehweg’s considerations do not
assume a cogent nature, as it happens with the legal positivism, since they are located in the domain
of dubium, the uncertain. According to Viehweg, Topics would be a technique of thinking for
problems, inspired and developed by rhetoric. See Viehweg (2007), p. 149.
128 For Goldsmith and Posner, “every state act that is inconsistent with existing international law is
open to two interpretations. First, the act might be said to be a violation of international law by a
state that intends only to take advantage of other, compliant states. Second, the act might be said to
be a proposal for revision of existing international law; the state acts inconsistently with international law in an effort to change it, to stimulate a new equilibrium that better serves its interests and,
in the usual case, the interests of other states that have sufficient power and influence.” See
Goldsmith and Posner (2005), p. 197.
166
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .