states, in a move that further deepens the abyss existent in the international society,
leaving it some steps farther from fairness and justice.
137 The reverse of creeping
coastal state jurisdiction would be the continuation, and perhaps even deepening, of
the once spoliative jurisdiction.
Concerning the practice of creeping and thickening jurisdiction after the signature
UNCLOS, there were fears during the 1990s that the 200-nm limit would be wiped
out in favor of coastal states’ increasing powers, specifically concerning access to
straddling and highly migratory fish populations.
138 However, that prophecy did not
materialize and the 200-nm limit stood the test of state practice—according to some
authors, due to the entry into force of the Convention. In fact, some authors are of the
view that, “for States, it still constitutes a sound policy to become party to the 1982
Convention in order to protect themselves against the attacks of creeping
jurisdiction”.
139
Apparently, evidence shows that coastal states’ unilateral assertions did not
continue significantly after the adoption of UNCLOS.
140 Instead, there is a limited
state practice inconsistent with the Convention that cannot be considered customary
law, neither does it set new trends in the law of the sea, being therefore essentially
different from the concerted rejection of the pre-UNCLOS ocean order. Whether
states advancing excessive claims could be held liable for acting in disregard of
UNCLOS provisions is a more complicated issue,
141 one that will be tackled in
coming chapters.
Overall, the balance between the rights and interests of flag and coastal states
achieved at UNCLOS is not at risk and “remains essentially unchanged today”.
142
There may be isolated threats to freedom of navigation, but on a limited scale and not
able to shake the entire edifice built after 1982. Isolated state practice inconsistent
with UNCLOS is, thus, devoid of power to question the overall functioning of law of
the sea dynamics, such as normative implementation and institutional work. Such
practice would be, therefore, no reason for sounding alerts of an alleged growing
“territorial temptation” by coastal states, a movement that ceased to exist since the
adoption of the Convention.
137 For a thorough notion of “fairness” as adopted in this work, one based on sustainable development and serious fight against poverty, see Tourme-Jouannet (2013), p. 88. The French author
analyzes fairness in the context of international economic law and considers fairness to be a
“general principle for creating or revising the legal norm”. When inquiring onto the fairness, the
internationalist aims at correcting “classical international development law which, by a tragic
paradox in its effects, may perhaps only ever have perpetuated the dependence and underdevelopment of the poor nations as it is unable to rectify the deep-rooted unfairness of the global system”.
138 Kwiatkowska (1991), pp. 166–170.
139 Franckx (2005), p. 149.
140 Molenaar (2015), p. 302.
141 For instance, one could ask whether a coastal state, such as Brazil, could be held internationally
liable for impeding the realization of an unconsented marine military exercise in its EEZ.
142 Molenaar (2015), p. 303.
6.4 Coastal States’ Jurisdictional Expansion from an Environmental Perspective:. . .
169
leaving it some steps farther from fairness and justice.
137 The reverse of creeping
coastal state jurisdiction would be the continuation, and perhaps even deepening, of
the once spoliative jurisdiction.
Concerning the practice of creeping and thickening jurisdiction after the signature
UNCLOS, there were fears during the 1990s that the 200-nm limit would be wiped
out in favor of coastal states’ increasing powers, specifically concerning access to
straddling and highly migratory fish populations.
138 However, that prophecy did not
materialize and the 200-nm limit stood the test of state practice—according to some
authors, due to the entry into force of the Convention. In fact, some authors are of the
view that, “for States, it still constitutes a sound policy to become party to the 1982
Convention in order to protect themselves against the attacks of creeping
jurisdiction”.
139
Apparently, evidence shows that coastal states’ unilateral assertions did not
continue significantly after the adoption of UNCLOS.
140 Instead, there is a limited
state practice inconsistent with the Convention that cannot be considered customary
law, neither does it set new trends in the law of the sea, being therefore essentially
different from the concerted rejection of the pre-UNCLOS ocean order. Whether
states advancing excessive claims could be held liable for acting in disregard of
UNCLOS provisions is a more complicated issue,
141 one that will be tackled in
coming chapters.
Overall, the balance between the rights and interests of flag and coastal states
achieved at UNCLOS is not at risk and “remains essentially unchanged today”.
142
There may be isolated threats to freedom of navigation, but on a limited scale and not
able to shake the entire edifice built after 1982. Isolated state practice inconsistent
with UNCLOS is, thus, devoid of power to question the overall functioning of law of
the sea dynamics, such as normative implementation and institutional work. Such
practice would be, therefore, no reason for sounding alerts of an alleged growing
“territorial temptation” by coastal states, a movement that ceased to exist since the
adoption of the Convention.
137 For a thorough notion of “fairness” as adopted in this work, one based on sustainable development and serious fight against poverty, see Tourme-Jouannet (2013), p. 88. The French author
analyzes fairness in the context of international economic law and considers fairness to be a
“general principle for creating or revising the legal norm”. When inquiring onto the fairness, the
internationalist aims at correcting “classical international development law which, by a tragic
paradox in its effects, may perhaps only ever have perpetuated the dependence and underdevelopment of the poor nations as it is unable to rectify the deep-rooted unfairness of the global system”.
138 Kwiatkowska (1991), pp. 166–170.
139 Franckx (2005), p. 149.
140 Molenaar (2015), p. 302.
141 For instance, one could ask whether a coastal state, such as Brazil, could be held internationally
liable for impeding the realization of an unconsented marine military exercise in its EEZ.
142 Molenaar (2015), p. 303.
6.4 Coastal States’ Jurisdictional Expansion from an Environmental Perspective:. . .
169