Yet, one should not feel tempted to rule out a priori any jurisdictional assertion
that takes place in the international stage as “creeping jurisdiction” and, therefore,
nefarious to the world’s order. As explained above, the phrases “creeping jurisdiction” or “ocean enclosure” can be misleading. Besides, a common feature in legal
analyses of creeping jurisdiction is to equate all actions that somehow expand
territorial competences over any maritime space throughout history, from maritime
powers and coastal states alike. In such analyses, focus lies on the element of
unilaterality and illegality of the action, in breach of established international law.
While respect for the international rule of law is certainly the ultimate goal of
internationalists, one should not neglect the element of politics that inspire this
discipline, nor the fact that law is primarily a cultural construct, international law
included.
With the erosion of the dogmatic view of freedom of the seas an untouchable
principle, sovereign rights of coastal states are enlarging, and the question remains
whether this enlargement implies greater prescriptive and enforcement powers of the
coastal states relating to environmental regulations. That question is all the more
relevant in gray areas that embody the sovereign ambition of coastal states, such as
the outer continental shelf.
191 It is therefore urgent to define the environmental
regime applicable, so as to promote a principled management of the continental
shelf beyond 200 nm. The problem has already been raised by Barry Dubner, when
analyzing the interplay of international law of the sea and the prevention of maritime
pollution. In so doing, the author highlighted the virtue of certain reasonable and
well-grounded unilateral state actions “in order to achieve national and international
legal congruity, depending on the urgency of the danger”.
192
At the end of the day, there has not been enough reason to raise alarms against an
allegedly excessive territorial expansion of coastal states seawards. Likewise, there
has not been a systematic breach of the 1982 Convention, i.e. provisions on the
jurisdiction of coastal states have not been modified by subsequent state practice. In
fact, state practice has not been enough to outdo UNCLOS, mainly due to the
Convention’s functioning system of checks and balances for every maritime zone,
in which opposing interests are brought to an equilibrium. As such, jurisdiction
ought not to be approached as a matter exclusively of territorial control, but also as a
question of duties and obligations falling upon the entity exercising jurisdiction.
An inevitable (though undesired) consequence of the expansion of coastal state’s
jurisdiction over the oceans is the accumulative number of overlapping claims and
the potential for disputes and conflicts. This rose the need for states to delimit
maritime boundaries between each other, a process not always consensual and
peaceful. To prevent the emergence of conflicts, interested states should have the
191 The possibility of expanding gained momentum after the scientific discovery of immense
hydrocarbons reserves in the deep sea, in areas beyond the tradition 200 nm EEZ. In Brazil, the
oil field “Garoupa” was discovered in 1974, that is during the negotiations of UNCLOS, and
possibly reinforce the country’s territorial vocation.
192 Dubner (1998), p. 137.
184
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
that takes place in the international stage as “creeping jurisdiction” and, therefore,
nefarious to the world’s order. As explained above, the phrases “creeping jurisdiction” or “ocean enclosure” can be misleading. Besides, a common feature in legal
analyses of creeping jurisdiction is to equate all actions that somehow expand
territorial competences over any maritime space throughout history, from maritime
powers and coastal states alike. In such analyses, focus lies on the element of
unilaterality and illegality of the action, in breach of established international law.
While respect for the international rule of law is certainly the ultimate goal of
internationalists, one should not neglect the element of politics that inspire this
discipline, nor the fact that law is primarily a cultural construct, international law
included.
With the erosion of the dogmatic view of freedom of the seas an untouchable
principle, sovereign rights of coastal states are enlarging, and the question remains
whether this enlargement implies greater prescriptive and enforcement powers of the
coastal states relating to environmental regulations. That question is all the more
relevant in gray areas that embody the sovereign ambition of coastal states, such as
the outer continental shelf.
191 It is therefore urgent to define the environmental
regime applicable, so as to promote a principled management of the continental
shelf beyond 200 nm. The problem has already been raised by Barry Dubner, when
analyzing the interplay of international law of the sea and the prevention of maritime
pollution. In so doing, the author highlighted the virtue of certain reasonable and
well-grounded unilateral state actions “in order to achieve national and international
legal congruity, depending on the urgency of the danger”.
192
At the end of the day, there has not been enough reason to raise alarms against an
allegedly excessive territorial expansion of coastal states seawards. Likewise, there
has not been a systematic breach of the 1982 Convention, i.e. provisions on the
jurisdiction of coastal states have not been modified by subsequent state practice. In
fact, state practice has not been enough to outdo UNCLOS, mainly due to the
Convention’s functioning system of checks and balances for every maritime zone,
in which opposing interests are brought to an equilibrium. As such, jurisdiction
ought not to be approached as a matter exclusively of territorial control, but also as a
question of duties and obligations falling upon the entity exercising jurisdiction.
An inevitable (though undesired) consequence of the expansion of coastal state’s
jurisdiction over the oceans is the accumulative number of overlapping claims and
the potential for disputes and conflicts. This rose the need for states to delimit
maritime boundaries between each other, a process not always consensual and
peaceful. To prevent the emergence of conflicts, interested states should have the
191 The possibility of expanding gained momentum after the scientific discovery of immense
hydrocarbons reserves in the deep sea, in areas beyond the tradition 200 nm EEZ. In Brazil, the
oil field “Garoupa” was discovered in 1974, that is during the negotiations of UNCLOS, and
possibly reinforce the country’s territorial vocation.
192 Dubner (1998), p. 137.
184
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .