The Law of the Sea
The law of the sea is one of the oldest disciplines in international law. However, in the twentieth century in particular the sea has become an even more significant legal issue. The League of Nations Conference for the Codification of International Law (1930, The Hague) dealt with the breadth of the territorial sea, the contiguous zone, the high seas, the continental shelf, fishing and the conservation of living resources.
Every continental land mass on the Earth has a common undersea geological feature. All are completely surrounded by a sharp edge known as the "Continental Shelf". Not visible from the land, these cliff structures mark the place where present day continents broke away from the original mass of the assumed supercontinent "Pangaea".
In the years following the Second World War, as the continental shelf became an issue in international law, a great deal of legal literature on the law of the sea emerged.
Equally prolific were the years of the definition of Exclusive Economic Zones. The early 1980s, during the finalization of the United Nations Convention on the Law of the Sea (UNCLOS III; itself preceded by UNCLOS II and I in 1960 and 1958 respectively), also witnessed a great outpouring of literature on the law of the sea. During the same period topics such as fishing, whaling, conservation of species, biodiversity, the Antarctic, environment, pollution, deep sea mining, oil platforms and nuclear tests became popular.
Grotius and his contemporaries
According to W.J.M. Eysinga the Dutch scholar and poet Hugo Grotius, the 'father of international law', would have achieved his eternal fame merely for his publication Mare Liberum:Si Grotius n'avait fait autre chose que'écrire le Mare Liberum, sa place dans l'évolution du droit des gens serait déjà tout à fait indiquée. Mais il a fait beaucoup plus.Grotius considered the freedom of the sea for navigation and trade purposes according to international law, and objected to the Spanish and Portuguese exclusive commercial rights in the East Indies. He sharply defined imperium (governance) and dominium (ownership) in international legal theory, issues which Shigeru Oda would continue to explore several centuries later.
(From 'Grotius (1625-1925)', in Sparsa collecta, p. 124).
William Welwood from Scotland in his 1613 An Abridgement of All Sea-Lawes vehemently opposed the position chosen by Grotius, for, interestingly enough, theological reasons. So did John Selden in his Mare Clausum (1635), because dominion of the sea was a divine matter. However, the pamphlet was primarily oriented against the ever-increasing Dutch herring fishery along the British coast.
Next in the genealogy of the international law of the sea is Cornelius Bynkershoek, whose De Dominio Maris Dissertatio, written in 1702, explains the territorial sovereignty by restricting it to the range of a cannon-shot.
At the end of the 18th century the so-called three miles rule became the predominant criterion.
Nowadays the territorial sea (and the sovereignty and jurisdiction over it, widely discussed themes in the second half of the eighteenth and during the nineteenth century) is 12 miles, the contiguous zone as well and the exclusive economic zone stretches 200 miles from the mainland into the sea.
In 1911, in The Sovereignty of the Sea, Thomas Wemyss Fulton shows the historical development of the "sovereignty of the British Islands" and "the evolution of the territorial waters in recent times". After his detailed account on the Dutch-British relations, on Mare Clausum by John Selden, on the disliked freedom of the seas as promoted by Hugo Grotius in Mare Liberum and on exploiting fishery resources, Fulton devotes another one third of the volume to territorial waters and fishery regulations.
Twentieth-century developments In his study entitled The law of territorial waters (1927) Philip Jessup proposed the texts for the articles that were to be accepted by the Hague Codification Conference of 1930, e.g. article iv, dealing with "Innocent Passage" (17th century Transitus Innoxium).
In the francophone world Gilbert Gidel’s Le droit international public de la mer (3 vols., 1932-1934) is of outstanding quality. Le nouveau droit international public de la mer, edited by Daniel Bardonnet and Michel Virally, offers the contributors the possibility to review their stands towards the law of the sea as professed in 1980 in "Vers un nouveau droit international de la mer", an article published in a special issue of La Revue Générale de Droit International Public.
The Public Order of the Oceans (1962) by Myres S. McDougal and William T. Burke addresses the law of the sea from the angle of policy-oriented jurisprudence, clarifying in the various fields of the law of the sea possible claims, past and future decisions and the circumstantial factors.
The maps in Lucchini and Voelkel's Droit de la mer illustrate the ingenuity with which deliminations in sea are often decided.
D.P. O'Connell wrote a comprehensive handbook on the law of the sea. In The International Law of the Sea, Volume I (1982), he describes "the law of the sea"; not only as "a feature of international law", but maintains also that international law is a central to it because the sea is the international arena in which for centuries states have daily had to regulate their conduct by reference to rules other than of their own making (p. 28). In a sense, the history of international law is the history of the law of the sea and vice versa, for the intellectual character of international law, its techniques, and its philophy, have been largely determined by the accommodations reached among nations respecting the use of the sea. Grotius's first reflections were upon the freedom of the seas, and the practice of states in the matter of maritime jurisdiction has remained since his time as much a provocation of legal ingenuities as a symptom of the changing emphases of political power.
In 1911, in The Sovereignty of the Sea, Thomas Wemyss Fulton shows the historical development of the "sovereignty of the British Islands" and "the evolution of the territorial waters in recent times". After his detailed account on the Dutch-British relations, on Mare Clausum by John Selden, on the disliked freedom of the seas as promoted by Hugo Grotius in Mare Liberum and on exploiting fishery resources, Fulton devotes another one third of the volume to territorial waters and fishery regulations.
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Fulton's The Sovereignty of the Sea vividly illustrates its arguments with pictures and reproductions of documents. From left to right: the titlepage, a view of English and Flemish fisheries under the Tudor reign (16th century),
and a page from the assesment of the ways in which to measure dominion of the sea, here:
the cannon shot. |
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Twentieth-century developments In his study entitled The law of territorial waters (1927) Philip Jessup proposed the texts for the articles that were to be accepted by the Hague Codification Conference of 1930, e.g. article iv, dealing with "Innocent Passage" (17th century Transitus Innoxium).
In the francophone world Gilbert Gidel’s Le droit international public de la mer (3 vols., 1932-1934) is of outstanding quality. Le nouveau droit international public de la mer, edited by Daniel Bardonnet and Michel Virally, offers the contributors the possibility to review their stands towards the law of the sea as professed in 1980 in "Vers un nouveau droit international de la mer", an article published in a special issue of La Revue Générale de Droit International Public.
The Public Order of the Oceans (1962) by Myres S. McDougal and William T. Burke addresses the law of the sea from the angle of policy-oriented jurisprudence, clarifying in the various fields of the law of the sea possible claims, past and future decisions and the circumstantial factors.
The maps in Lucchini and Voelkel's Droit de la mer illustrate the ingenuity with which deliminations in sea are often decided.
D.P. O'Connell wrote a comprehensive handbook on the law of the sea. In The International Law of the Sea, Volume I (1982), he describes "the law of the sea"; not only as "a feature of international law", but maintains also that international law is a central to it because the sea is the international arena in which for centuries states have daily had to regulate their conduct by reference to rules other than of their own making (p. 28). In a sense, the history of international law is the history of the law of the sea and vice versa, for the intellectual character of international law, its techniques, and its philophy, have been largely determined by the accommodations reached among nations respecting the use of the sea. Grotius's first reflections were upon the freedom of the seas, and the practice of states in the matter of maritime jurisdiction has remained since his time as much a provocation of legal ingenuities as a symptom of the changing emphases of political power.
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