infringe UNCLOS provisions. Following that rationale, the declaration of a 200 nm
economic zone made by several Latin American States during the 1970s was
considered contrary to customary law prior to 1982. Nowadays, the unnegotiated
adoption of stricter environmental rules for vessels navigating the EEZ—as was the
case of Portugal, Spain and France, following the 2003 Prestige incident—was also
dismissed as an excessive measure.
Those claims amounted, so the traditional doctrine of the law of the sea, to a
practice labeled as “creeping jurisdiction”, which needs no introduction. This work
offered a counterargument to the widespread and wholesale use of that phrase,
employed to depict every unilateral measure considered excessive by naval powers,
regardless of the context in which the measure is enforced. To do so, it divided two
“epochs” in the law of the sea: the pre-UNCLOS era, and the times which followed
the adoption of the Convention.
Concerning the pre-UNCLOS era, the widespread phrase “creeping jurisdiction”
does not accurately depict the expansionist claims staged by coastal states. The
concept is value-laden and describes an inherently wicked practice, which may not
be the case with the systematic opposition to the ordre publique of the oceans before
1982. Hence, this work advanced the thesis according to which territorialist positions
prior to UNCLOS were crucial, as they defied the model of colonial spoliation which
inspired the law of the sea until that time. The opposite of the so-called “creeping
jurisdiction” would, thus, be the continuation of a spoliative jurisdiction, one that
connotes the colonialist origins of the law of the sea as a legal system that favored
technologically advanced coastal states through overwhelming prestige to freedom
of the seas. Such prestige was the direct result of the primary role played by maritime
states in shaping the public order of the oceans over the course of history.
In that context, Brazil, the “leader of territorialists”, assumed a leading role in
seeking the expansion of coastal state powers farther away offshore. The country
played an important part in catalyzing change, partially due to its gigantic area,
economic status, and political clout. By affirming sovereignty over the 200-nm zone,
in 1970, Brazil and other developing countries obtained decisive bargaining power
for the international negotiations that took place during the Third Conference.
Ultimately, Brazilian practice prior to the adoption of UNCLOS was instrumental
to the emergence of the “new” law of the sea, one sensitive to social, economic and
human needs.
Following those considerations, this book diagnosed the need for a Southern
narrative of the law of the sea, one that objects traditional privileges and hegemony
held by maritime and naval powers; a narrative that perceives the law of the sea as a
compound of juridico-political constructs which stem from political struggles. It was
so with the disputes for a territorial sea of twelve nautical miles, for a 200-nm EEZ,
for an outer continental shelf, for an internationalized deep seabed subject to the
common heritage principle, and, nowadays, for enhanced marine environmental
protection.
Regarding coastal states’ marine environmental jurisdiction, in particular, this
work sided with the calls for a renewed ethos of the mare liberum doctrine, one that
updates freedoms of the seas to the current historical moment of the consolidation of
358
11 Conclusions
economic zone made by several Latin American States during the 1970s was
considered contrary to customary law prior to 1982. Nowadays, the unnegotiated
adoption of stricter environmental rules for vessels navigating the EEZ—as was the
case of Portugal, Spain and France, following the 2003 Prestige incident—was also
dismissed as an excessive measure.
Those claims amounted, so the traditional doctrine of the law of the sea, to a
practice labeled as “creeping jurisdiction”, which needs no introduction. This work
offered a counterargument to the widespread and wholesale use of that phrase,
employed to depict every unilateral measure considered excessive by naval powers,
regardless of the context in which the measure is enforced. To do so, it divided two
“epochs” in the law of the sea: the pre-UNCLOS era, and the times which followed
the adoption of the Convention.
Concerning the pre-UNCLOS era, the widespread phrase “creeping jurisdiction”
does not accurately depict the expansionist claims staged by coastal states. The
concept is value-laden and describes an inherently wicked practice, which may not
be the case with the systematic opposition to the ordre publique of the oceans before
1982. Hence, this work advanced the thesis according to which territorialist positions
prior to UNCLOS were crucial, as they defied the model of colonial spoliation which
inspired the law of the sea until that time. The opposite of the so-called “creeping
jurisdiction” would, thus, be the continuation of a spoliative jurisdiction, one that
connotes the colonialist origins of the law of the sea as a legal system that favored
technologically advanced coastal states through overwhelming prestige to freedom
of the seas. Such prestige was the direct result of the primary role played by maritime
states in shaping the public order of the oceans over the course of history.
In that context, Brazil, the “leader of territorialists”, assumed a leading role in
seeking the expansion of coastal state powers farther away offshore. The country
played an important part in catalyzing change, partially due to its gigantic area,
economic status, and political clout. By affirming sovereignty over the 200-nm zone,
in 1970, Brazil and other developing countries obtained decisive bargaining power
for the international negotiations that took place during the Third Conference.
Ultimately, Brazilian practice prior to the adoption of UNCLOS was instrumental
to the emergence of the “new” law of the sea, one sensitive to social, economic and
human needs.
Following those considerations, this book diagnosed the need for a Southern
narrative of the law of the sea, one that objects traditional privileges and hegemony
held by maritime and naval powers; a narrative that perceives the law of the sea as a
compound of juridico-political constructs which stem from political struggles. It was
so with the disputes for a territorial sea of twelve nautical miles, for a 200-nm EEZ,
for an outer continental shelf, for an internationalized deep seabed subject to the
common heritage principle, and, nowadays, for enhanced marine environmental
protection.
Regarding coastal states’ marine environmental jurisdiction, in particular, this
work sided with the calls for a renewed ethos of the mare liberum doctrine, one that
updates freedoms of the seas to the current historical moment of the consolidation of
358
11 Conclusions