Revisiting the Critique Against Territorialism in the Law of the Sea: Brazilian State Practice in Light of the Concepts of Creeping Jurisdiction and Spoliative Jurisdiction

Abstract

The United Nations Convention on the Law of the Sea (UNCLOS) consolidated considerable jurisdictional powers for coastal states and set the cornerstone for the “new” law of the sea. Such codification did not come on a plate, but derived from continuous opposition to the prevalence of historical hegemonisms in the seas. This paper attempts at offering an account of the expansion of coastal state jurisdiction by differing from the traditional narrative which emphasizes the subversive and disruptive nature of coastal states’ jurisdictional assertions prior and during the III United National Conference on the Law of the Sea (UNCfLOS). Traditional scholarship often alarmed against “territorialism” and the “enclosure of the oceans”, while shielding the sacred principled of freedom of the seas. To traditionalists, assertions by coastal states seeking to extend jurisdiction beyond the usual three nautical miles (nm) amounted to “creeping jurisdiction”, a nefarious practice seen as powerful enough to undermine the international rule of law for the seas. In this context, Brazil has attracted plenty of criticism for its prominent role in thrusting coastal state’s authority seaward. This paper advances the argument that were it not for creeping jurisdiction before, and sometimes after, UNCLOS, the international community would still collude with a regime of “spoliative jurisdiction”, a practice as old as international law’s colonial origins.