deserve the pejorative label of “creeping jurisdiction”, for it was justified in the light
of general objectives of international law—amongst which the shaping of a politically fair and economically just order. Secondly, not all jurisdictional claims postUNCLOS fall under the same category of “excessiveness”, and due to their isolated
and not uniform occurrence cannot be designated as an “expansionist movement”.
One way to tell the story of the law of the sea development is to confuse the
pre-UNCLOS expansionist movement with contemporary attempts by coastal states
to restrict freedoms of the high seas beyond the 200-nm line after the Convention.
Recent attempts are considered particularly harmful to the international ocean order
when they constrain freedom to access living resources in the water column beyond
that limit—a practice inconsistent with the blackletter of UNCLOS Art. 87 (1) (e).
Such a “creep” on jurisdiction is in the roots of the Estai incident between Canada
and Spain during the 1990s, or the Chilean geopolitical concept of mar presencial in
the adjacent waters of its EEZ. In that version, some coastal states are described as
the causative agents of disorder in the ordre publique océanique.
129 Those subscribing to excessive claims beyond the limits imposed at UNCLOS are accused of
touting anarchy in international law, as if before UNCLOS order and stability in
the oceans would reign. For Michael Becker, there are still non-navigational practices which promote and sustain disorder, including “unilateral, excessive claims
over the extent of the territorial sea or the continental shelf”.
130
There again, the problem emerges when the disorder created by the practice of
asserting jurisdiction to change the legal division of the oceans prior to UNCLOS is
equated to individual excessive jurisdictional claims post-UNCLOS. When analyzing breaches of the international legal-oceanic system, one ought to take into account
that disorder is not necessarily bad, as it could mean the push for a revised, new
order—one more in line with the demands of a certain time. In this sense, it helps to
enquire on the fairness of international interactions before UNCLOS and the
so-called “jurisdictional creep” by coastal states, when there was no internationally
codified EEZ, and exclusive resource-jurisdiction was continuously questioned by
maritime powers. In short, before the creation of the EEZ, developing coastal states
considered that international law allowed developed countries to “appropriate the
lion’s share because only developed countries would have the capability of
harvesting such resources on a commercial scale”.
131
The kind of disorder that comes to promote general fairness and justice is
justifiable, and the pre-UNCLOS legal regime of absolute prevalence of freedom
of the seas over territorial sovereignty of coastal states was all but fair. Indeed,
customary law disciplining access to natural marine resources did not take into
account the special needs of developing and least developed coastal states. General
dissatisfaction with the ruling order was such that negotiating parties to the Third
129 “Since the end of the Cold War, disorder on the oceans appears resurgent”. See Langewiesche
(2003), p. 63.
130 Becker (2005), p. 132.
131 Fidler (2003), p. 43.
6.4 Coastal States’ Jurisdictional Expansion from an Environmental Perspective:. . .
167
of general objectives of international law—amongst which the shaping of a politically fair and economically just order. Secondly, not all jurisdictional claims postUNCLOS fall under the same category of “excessiveness”, and due to their isolated
and not uniform occurrence cannot be designated as an “expansionist movement”.
One way to tell the story of the law of the sea development is to confuse the
pre-UNCLOS expansionist movement with contemporary attempts by coastal states
to restrict freedoms of the high seas beyond the 200-nm line after the Convention.
Recent attempts are considered particularly harmful to the international ocean order
when they constrain freedom to access living resources in the water column beyond
that limit—a practice inconsistent with the blackletter of UNCLOS Art. 87 (1) (e).
Such a “creep” on jurisdiction is in the roots of the Estai incident between Canada
and Spain during the 1990s, or the Chilean geopolitical concept of mar presencial in
the adjacent waters of its EEZ. In that version, some coastal states are described as
the causative agents of disorder in the ordre publique océanique.
129 Those subscribing to excessive claims beyond the limits imposed at UNCLOS are accused of
touting anarchy in international law, as if before UNCLOS order and stability in
the oceans would reign. For Michael Becker, there are still non-navigational practices which promote and sustain disorder, including “unilateral, excessive claims
over the extent of the territorial sea or the continental shelf”.
130
There again, the problem emerges when the disorder created by the practice of
asserting jurisdiction to change the legal division of the oceans prior to UNCLOS is
equated to individual excessive jurisdictional claims post-UNCLOS. When analyzing breaches of the international legal-oceanic system, one ought to take into account
that disorder is not necessarily bad, as it could mean the push for a revised, new
order—one more in line with the demands of a certain time. In this sense, it helps to
enquire on the fairness of international interactions before UNCLOS and the
so-called “jurisdictional creep” by coastal states, when there was no internationally
codified EEZ, and exclusive resource-jurisdiction was continuously questioned by
maritime powers. In short, before the creation of the EEZ, developing coastal states
considered that international law allowed developed countries to “appropriate the
lion’s share because only developed countries would have the capability of
harvesting such resources on a commercial scale”.
131
The kind of disorder that comes to promote general fairness and justice is
justifiable, and the pre-UNCLOS legal regime of absolute prevalence of freedom
of the seas over territorial sovereignty of coastal states was all but fair. Indeed,
customary law disciplining access to natural marine resources did not take into
account the special needs of developing and least developed coastal states. General
dissatisfaction with the ruling order was such that negotiating parties to the Third
129 “Since the end of the Cold War, disorder on the oceans appears resurgent”. See Langewiesche
(2003), p. 63.
130 Becker (2005), p. 132.
131 Fidler (2003), p. 43.
6.4 Coastal States’ Jurisdictional Expansion from an Environmental Perspective:. . .
167