Freedom of navigation in a post 9/11 world: security and creeping jurisdiction

The phrase ‘creeping jurisdiction’ has been applied by a number of publicists to the gradual extension of state jurisdiction offshore in the law of the sea through the course of the 20th century. Under the current United Nations Convention on the Law of the Sea (LOSC), and confirmed by international practice, the territorial sea is 12 nautical miles wide. It might have been thought that jurisdictional creep had ended with the conclusion of the United Nations Convention on the Law of the Sea (LOSC) in 1982. This chapter examines whether contemporary practice may lead to a further creeping of jurisdiction, not in a further grab for resources, but in an effort by states to provide themselves with greater security from threats from the sea. It examines contemporary and emerging practice in respect of maritime security, and discusses whether seeking greater control over security — which covers military security and environmental security — is the next generation of jurisdictional creep. Beyond the territorial sea, the LOSC also confirms that there is freedom of navigation for all vessels. This is essentially applicable for the exclusive economic zone and high seas areas beyond it.