The text adopted in 1982 and signed by 167 parties will stand the test of time as
long as its provisions are perceived as fair and its regimes, just, by the majority of the
international community. The effectiveness of UNCLOS is a process in constant
need of reassessment and intimately connected to the fairness of its provisions and
justice of the regimes it creates. The balance of powers needs to be recurrently
checked, regardless of the herculean efforts required for that. For now, the greatest
dilemma for the law of the sea in the twenty first century seems to be how to
conciliate the principle of non-interference in navigational freedoms and the need
to promote ecological conservation and socioeconomic well-being in coastal states.
If advancement of the latter is inflicting disorder and instability into the façade of
UNCLOS, then it may be time to effect changes in the Convention or in admissible
state practice, so that international community profits from state-of-the-art marine
ecological policies.
From international legal scholars, it is expected a critical understanding of the
power struggles in international law when referring to the issue of jurisdictional
claims beyond what is in the Convention. It is not enough to simply read the
blackletter of the law (UNCLOS and related international treaties) and reach the
conclusion that every jurisdictional claim apparently inconsistent with or
unregulated by the Convention amounts to creeping jurisdiction, being therefore
an illegal and undesirable behavior in international law. In the case of stricter
environmental regulations, international lawyers ought not to depart from the presumption of prevalence of an almost absolute freedom of navigation, but from the
prevalence of marine environmental health and good conditions of the world oceans.
The current maritime context is one in which jurisdiction has evolved from an
exclusive to an inclusive model of enforcement, one performed in unity and combination with other interested states.
143 Lawyers ought to forward a project of public
order that prevents fallback into chaos, while mirroring power struggles and social
values of current days. Developing coastal states, the majority of the international
community, will not take pendants in exchange for precious metals any longer, and
that must be present in every international legal analysis attempting to sound any sort
of alarm. Besides, international scholars ought to embrace the complexity of the
current UNCLOS structure of complementary and competing jurisdictional models.
For a fact, this plurality of regimes will sometimes translate into difficult and blurred
relationships, uncertainty of applicable rights in overlapping zones, need for
balancing conflicting principles on an ad hoc basis, for every delicate situation.
The times of a straightforward and easy-to-grasp dual jurisdictional division of the
oceans are unquestionably gone.
143 The wording “inclusive model of enforcement” is formulated by Michael Becker, on considerations by McDougal and Burke on the risks of arbitrary unilateral enforcement action against
foreign vessels on the high seas to the “freedom of access”. See Becker (2005), p. 135.
170
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
long as its provisions are perceived as fair and its regimes, just, by the majority of the
international community. The effectiveness of UNCLOS is a process in constant
need of reassessment and intimately connected to the fairness of its provisions and
justice of the regimes it creates. The balance of powers needs to be recurrently
checked, regardless of the herculean efforts required for that. For now, the greatest
dilemma for the law of the sea in the twenty first century seems to be how to
conciliate the principle of non-interference in navigational freedoms and the need
to promote ecological conservation and socioeconomic well-being in coastal states.
If advancement of the latter is inflicting disorder and instability into the façade of
UNCLOS, then it may be time to effect changes in the Convention or in admissible
state practice, so that international community profits from state-of-the-art marine
ecological policies.
From international legal scholars, it is expected a critical understanding of the
power struggles in international law when referring to the issue of jurisdictional
claims beyond what is in the Convention. It is not enough to simply read the
blackletter of the law (UNCLOS and related international treaties) and reach the
conclusion that every jurisdictional claim apparently inconsistent with or
unregulated by the Convention amounts to creeping jurisdiction, being therefore
an illegal and undesirable behavior in international law. In the case of stricter
environmental regulations, international lawyers ought not to depart from the presumption of prevalence of an almost absolute freedom of navigation, but from the
prevalence of marine environmental health and good conditions of the world oceans.
The current maritime context is one in which jurisdiction has evolved from an
exclusive to an inclusive model of enforcement, one performed in unity and combination with other interested states.
143 Lawyers ought to forward a project of public
order that prevents fallback into chaos, while mirroring power struggles and social
values of current days. Developing coastal states, the majority of the international
community, will not take pendants in exchange for precious metals any longer, and
that must be present in every international legal analysis attempting to sound any sort
of alarm. Besides, international scholars ought to embrace the complexity of the
current UNCLOS structure of complementary and competing jurisdictional models.
For a fact, this plurality of regimes will sometimes translate into difficult and blurred
relationships, uncertainty of applicable rights in overlapping zones, need for
balancing conflicting principles on an ad hoc basis, for every delicate situation.
The times of a straightforward and easy-to-grasp dual jurisdictional division of the
oceans are unquestionably gone.
143 The wording “inclusive model of enforcement” is formulated by Michael Becker, on considerations by McDougal and Burke on the risks of arbitrary unilateral enforcement action against
foreign vessels on the high seas to the “freedom of access”. See Becker (2005), p. 135.
170
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .