dismissal would contradict the conception of the Treaty as a “living organism”.
170
To interpret UNCLOS as a living organism is particularly relevant in light of current
challenges, as it seems to offer the only viable solution for the Convention’s frequent
silences and vagueness on complex environmental issues. An extreme dogmatic
approach to UNCLOS, as the one espoused by the United States Navy, may show
pertinent concerns with certain developments in the law of the sea, but will not admit
that the approach is already an interpretation of the Convention; and that every
international treaty may have its provisions interpreted and, if necessary, adapted to
the needs and demands of the current time.
Besides, maritime security considerations vary from country to country, as do the
methods for facing them. Thus, the United States Navy may consider the “enclosure”
of open seas as a priority threat to maritime security worldwide and, then, enforce the
famous FON operations to reinstall respect for the law of the sea. Yet, that may not
be the same priority of a West-African state, for instance. As illustrated by this
example, maritime security considerations also reflect special self-interests, which
relate to the political and economic agendas of nations that rely more heavily on high
seas freedoms to sustain economic leadership and that wish to project power
capacities to the ocean. The rhetorical and argumentative strategy to disguise such
self-interested action is to formulate special interests of naval powers as “rights of
the international community”.
171 In this context, why do only environmental concerns camouflage illegal jurisdictional expansionism, while maritime security interests are not considered to veil maritime hegemonisms over the oceans?
Finally, it should be born in mind that one of the key philosophies underpinning
UNCLOS (as there is not a single philosophy) is to acknowledge the coastal state as
part of the solution to marine environmental pressures, not just the problem. In times
of greater marine environmental awareness, it would be a mistake to disregard
coastal states’ role as necessary actors in tackling marine threats. They are certainly
not the panacea to all problems, but are no less relevant than flag states, particularly
in light of the problematic record of “open registries” which indirectly contribute to a
state of disdain for the oceans. To include coastal states in the equation for better
marine ecological protection is not just relevant from a moral perspective but is
legally grounded on several provisions of the Convention. In fact, UNCLOS has
granted coastal states room for the exercise of a multifunctional jurisdiction over
maritime spaces under national jurisdiction,
172 including the continental shelf,
most of solutions for complex problems, the solution for the environmental degradation would lie
on a middle ground, as a radical biocentrism could render every economic activity detrimental to the
environment and nefarious to the intrinsic value of nature’s elements, a consequence which would
ultimately benefit no one. For more on the different environmental ethics, see Leff (1998), p. 72. See
also Merchant (1998), p. 463.
170 See generally Barrett and Barnes (2016).
171 Kraska (2011), p. 8.
172 Art. 56 (1) (a) UNCLOS. The expression “multifunctional jurisdiction” is based on the idea of a
“functional jurisdiction”, but seems to better reflect coastal states’ plural competences in areas under
national jurisdiction.
178
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
170
To interpret UNCLOS as a living organism is particularly relevant in light of current
challenges, as it seems to offer the only viable solution for the Convention’s frequent
silences and vagueness on complex environmental issues. An extreme dogmatic
approach to UNCLOS, as the one espoused by the United States Navy, may show
pertinent concerns with certain developments in the law of the sea, but will not admit
that the approach is already an interpretation of the Convention; and that every
international treaty may have its provisions interpreted and, if necessary, adapted to
the needs and demands of the current time.
Besides, maritime security considerations vary from country to country, as do the
methods for facing them. Thus, the United States Navy may consider the “enclosure”
of open seas as a priority threat to maritime security worldwide and, then, enforce the
famous FON operations to reinstall respect for the law of the sea. Yet, that may not
be the same priority of a West-African state, for instance. As illustrated by this
example, maritime security considerations also reflect special self-interests, which
relate to the political and economic agendas of nations that rely more heavily on high
seas freedoms to sustain economic leadership and that wish to project power
capacities to the ocean. The rhetorical and argumentative strategy to disguise such
self-interested action is to formulate special interests of naval powers as “rights of
the international community”.
171 In this context, why do only environmental concerns camouflage illegal jurisdictional expansionism, while maritime security interests are not considered to veil maritime hegemonisms over the oceans?
Finally, it should be born in mind that one of the key philosophies underpinning
UNCLOS (as there is not a single philosophy) is to acknowledge the coastal state as
part of the solution to marine environmental pressures, not just the problem. In times
of greater marine environmental awareness, it would be a mistake to disregard
coastal states’ role as necessary actors in tackling marine threats. They are certainly
not the panacea to all problems, but are no less relevant than flag states, particularly
in light of the problematic record of “open registries” which indirectly contribute to a
state of disdain for the oceans. To include coastal states in the equation for better
marine ecological protection is not just relevant from a moral perspective but is
legally grounded on several provisions of the Convention. In fact, UNCLOS has
granted coastal states room for the exercise of a multifunctional jurisdiction over
maritime spaces under national jurisdiction,
172 including the continental shelf,
most of solutions for complex problems, the solution for the environmental degradation would lie
on a middle ground, as a radical biocentrism could render every economic activity detrimental to the
environment and nefarious to the intrinsic value of nature’s elements, a consequence which would
ultimately benefit no one. For more on the different environmental ethics, see Leff (1998), p. 72. See
also Merchant (1998), p. 463.
170 See generally Barrett and Barnes (2016).
171 Kraska (2011), p. 8.
172 Art. 56 (1) (a) UNCLOS. The expression “multifunctional jurisdiction” is based on the idea of a
“functional jurisdiction”, but seems to better reflect coastal states’ plural competences in areas under
national jurisdiction.
178
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .