Conference dedicated a paragraph of the Convention’s Preamble to highlight state
parties’ commitment to the “maintenance of peace, justice and progress for all
peoples of the world”.
132 The Convention was negotiated on the widely shared
assumption that the pre-UNCLOS economic (and oceanic) order was inadequate,
what made a just and equitable international economic order due.
133 Needless to say,
the new order ought to take particular note of the special interests and needs of
developing countries.
In this sense, territorialization and disorder in the pre-UNCLOS ocean order arose
so as to defy the previous model of colonial spoliation which inspired customary
international law of the sea. The opposite of the so-called creeping jurisdiction
would be a spoliative jurisdiction, one that connotes the colonialist origins of
international law as legal system that favored technologically advanced coastal states
through overwhelming prestige to freedom of the seas in detriment of technical
deficits and economic needs of developing coastal states. Such prestige was none
other than the direct result of a “primary role” played by maritime states in shaping
the public order of the oceans over the course of history.
134 Privileges to developed
nations would have been exacerbated in the deep seabed regime, were it not for
Arvid Pardo’s proposal of a common heritage principle. In fact, under the freedoms
of the high seas principle, “the developed States of the West, which alone could
muster the necessary investment and technology, would be the main beneficiaries of
sea-bed mining”.
135 To assert jurisdiction over those resources was the alternative
found by developing states to the inherent unfairness in previous rules of international law. If this was a “crept of jurisdiction”, then it was justified.
It has been suggested, albeit without any practical evidence, that the phenomenon
could be applied in revert as well. Hence, flag states could opt for exploiting living
resources within coastal states’ unilaterally declared maritime zones.
136 This legalist
argument inadequately simplifies the problem of creeping jurisdiction, by basically
focusing on the element of breaching of an international rule, without taking into
account the context in which such violation occurs. In some cases, the practice of
creeping on jurisdiction seawards was a political response to the politically agreed
system of laws that instituted a jurisdiction to plunder. Furthermore, it equals all
kinds of creeping jurisdiction, from maritime powers to least developed coastal
132 “Prompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issues
relating to the law of the sea and aware of the historic significance of this Convention as an
important contribution to the maintenance of peace, justice and progress for all peoples of the
world.” UNCLOS, Preamble.
133 “Bearing in mind that the achievement of these goals will contribute to the realization of a just
and equitable international economic order which takes into account the interests and needs of
mankind as a whole and, in particular, the special interests and needs of developing countries,
whether coastal or land-locked”. Id.
134 According to Becker, “over the course of history, powerful maritime states have played the
primary role in shaping the public order of the oceans”. See Becker (2005), p. 131.
135 Churchill and Lowe (1999), p. 157.
136 Franckx (2005), p. 139.
168
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
parties’ commitment to the “maintenance of peace, justice and progress for all
peoples of the world”.
132 The Convention was negotiated on the widely shared
assumption that the pre-UNCLOS economic (and oceanic) order was inadequate,
what made a just and equitable international economic order due.
133 Needless to say,
the new order ought to take particular note of the special interests and needs of
developing countries.
In this sense, territorialization and disorder in the pre-UNCLOS ocean order arose
so as to defy the previous model of colonial spoliation which inspired customary
international law of the sea. The opposite of the so-called creeping jurisdiction
would be a spoliative jurisdiction, one that connotes the colonialist origins of
international law as legal system that favored technologically advanced coastal states
through overwhelming prestige to freedom of the seas in detriment of technical
deficits and economic needs of developing coastal states. Such prestige was none
other than the direct result of a “primary role” played by maritime states in shaping
the public order of the oceans over the course of history.
134 Privileges to developed
nations would have been exacerbated in the deep seabed regime, were it not for
Arvid Pardo’s proposal of a common heritage principle. In fact, under the freedoms
of the high seas principle, “the developed States of the West, which alone could
muster the necessary investment and technology, would be the main beneficiaries of
sea-bed mining”.
135 To assert jurisdiction over those resources was the alternative
found by developing states to the inherent unfairness in previous rules of international law. If this was a “crept of jurisdiction”, then it was justified.
It has been suggested, albeit without any practical evidence, that the phenomenon
could be applied in revert as well. Hence, flag states could opt for exploiting living
resources within coastal states’ unilaterally declared maritime zones.
136 This legalist
argument inadequately simplifies the problem of creeping jurisdiction, by basically
focusing on the element of breaching of an international rule, without taking into
account the context in which such violation occurs. In some cases, the practice of
creeping on jurisdiction seawards was a political response to the politically agreed
system of laws that instituted a jurisdiction to plunder. Furthermore, it equals all
kinds of creeping jurisdiction, from maritime powers to least developed coastal
132 “Prompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issues
relating to the law of the sea and aware of the historic significance of this Convention as an
important contribution to the maintenance of peace, justice and progress for all peoples of the
world.” UNCLOS, Preamble.
133 “Bearing in mind that the achievement of these goals will contribute to the realization of a just
and equitable international economic order which takes into account the interests and needs of
mankind as a whole and, in particular, the special interests and needs of developing countries,
whether coastal or land-locked”. Id.
134 According to Becker, “over the course of history, powerful maritime states have played the
primary role in shaping the public order of the oceans”. See Becker (2005), p. 131.
135 Churchill and Lowe (1999), p. 157.
136 Franckx (2005), p. 139.
168
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .