2
1 Introduction. The Functionalist Theory in the Book “Il
regime giuridico dei mari”
It is not the intent of this article to provide a general analysis of the scientific contribution of Benedetto Conforti, nor of his memory. For this purpose, we refer to the
extensive accounts written by other colleagues and pupils of the much-lamented
Maestro.
1
The law of the sea holds a pre-eminent position in the scientific writings of
Benedetto Conforti. This area of international law was in fact the object of his
research from the very beginning of his scholarly activities and accompanied him
throughout his life. As we will attempt to demonstrate, even in writing of this topic
the Maestro was always coherent in using methods aimed at the immediate identification of the juridical problem and the search for solutions based on the analysis of
practice.
After his initial ‘minor’ writings and while still very young Benedetto Conforti
first approached the law of the sea as he was preparing his first monograph. One that
his mentor, Rolando Quadri, had suggested, encouraging him to continue along the
path that he himself had undertaken with an important work published in 1939 and
that is still of great usefulness today, “Le navi private nel diritto internazionale”.
These were the years in which the United Nations’ International Law Commission
promoted the vast undertaking of codifying such rules and that eventually led to the
four Geneva Conventions of 1958. In attempting to delineate the legal regime of the
seas in a systematic and thorough manner Conforti develops a convincing and original critique of the ‘territorialization’ of marine spaces, that is, of the idea that a
regime analogous to that of territorial sovereignty could be applied to the seas.
Using an inductive method, he demonstrated, through an attentive and thorough
study of practice, the erroneousness of this approach as far back as the period during
which the debate was focused on the so called ‘dominion of the seas’, an erroneousness that issued from “an excessive, and forced generalization, postulated on the
doctrine of the era and never doubted by subsequent doctrine, of individual phenomena found in said marine spaces”.
2
His radical rethinking of the concept of
government authority over marine spaces leads to viewing such authority in ‘functional’ terms, that is, an extension of the coastal State’s authority because of specific
interests identified on a case by case basis, such as fishing, customs oversight, etc.
Over time these interests expanded, from fishing and customs control to all the benefits that could be derived from adjacent waters, and consequently there was an
“evolution in the value of the interest at the basis of the enforcing action of the
coastal State, from an interest in ostensible marine utility, to a typical local interest”,
that is, interest in the undisturbed continuation of the life of the coastal community.
3
1 See articles by Iovane (2015), Francioni (2016), Tesauro (2016); for specific areas of Conforti’s
activities see also Giardina (2016), Pisillo Mazzeschi (2016) and Raimondi (2016).
2 Conforti (1957), p. 27 ff (our translation).
3 Ibidem, p. 242 ff (our translation).
G. Cataldi
1 Introduction. The Functionalist Theory in the Book “Il
regime giuridico dei mari”
It is not the intent of this article to provide a general analysis of the scientific contribution of Benedetto Conforti, nor of his memory. For this purpose, we refer to the
extensive accounts written by other colleagues and pupils of the much-lamented
Maestro.
1
The law of the sea holds a pre-eminent position in the scientific writings of
Benedetto Conforti. This area of international law was in fact the object of his
research from the very beginning of his scholarly activities and accompanied him
throughout his life. As we will attempt to demonstrate, even in writing of this topic
the Maestro was always coherent in using methods aimed at the immediate identification of the juridical problem and the search for solutions based on the analysis of
practice.
After his initial ‘minor’ writings and while still very young Benedetto Conforti
first approached the law of the sea as he was preparing his first monograph. One that
his mentor, Rolando Quadri, had suggested, encouraging him to continue along the
path that he himself had undertaken with an important work published in 1939 and
that is still of great usefulness today, “Le navi private nel diritto internazionale”.
These were the years in which the United Nations’ International Law Commission
promoted the vast undertaking of codifying such rules and that eventually led to the
four Geneva Conventions of 1958. In attempting to delineate the legal regime of the
seas in a systematic and thorough manner Conforti develops a convincing and original critique of the ‘territorialization’ of marine spaces, that is, of the idea that a
regime analogous to that of territorial sovereignty could be applied to the seas.
Using an inductive method, he demonstrated, through an attentive and thorough
study of practice, the erroneousness of this approach as far back as the period during
which the debate was focused on the so called ‘dominion of the seas’, an erroneousness that issued from “an excessive, and forced generalization, postulated on the
doctrine of the era and never doubted by subsequent doctrine, of individual phenomena found in said marine spaces”.
2
His radical rethinking of the concept of
government authority over marine spaces leads to viewing such authority in ‘functional’ terms, that is, an extension of the coastal State’s authority because of specific
interests identified on a case by case basis, such as fishing, customs oversight, etc.
Over time these interests expanded, from fishing and customs control to all the benefits that could be derived from adjacent waters, and consequently there was an
“evolution in the value of the interest at the basis of the enforcing action of the
coastal State, from an interest in ostensible marine utility, to a typical local interest”,
that is, interest in the undisturbed continuation of the life of the coastal community.
3
1 See articles by Iovane (2015), Francioni (2016), Tesauro (2016); for specific areas of Conforti’s
activities see also Giardina (2016), Pisillo Mazzeschi (2016) and Raimondi (2016).
2 Conforti (1957), p. 27 ff (our translation).
3 Ibidem, p. 242 ff (our translation).
G. Cataldi