3
Hence the assertion of ‘functional’ protection of coastal interests, and the negation
of spatial protection, with reference also to contemporaneity, that is, the era of the
Geneva codification. As we will soon see, the results of this codification confirmed
these theses, and, as will note later on, the “functionalist” theory will reappear in
later writings of the Maestro as it contextualized the evolution of international practice on the subject. A functional delimitation of the power of the State can also be
accompanied by a spatial delimitation when its exercise must be contained within
certain geographic limits; but can also be envisaged, one might say, in its ‘pure’
state, without considering the space in which the State intervention takes place. His
theory is thus correct and convincing, notwithstanding the fact that in certain contexts the spatial criterion later prevailed, as is the case, surely the most evident, of
the territorial sea. In this writer’s opinion, by the way, affirmation of the territoriality
of this marine space took place in an era preceding the one indicated in Conforti’s
writings.
4
2 The Geneva Codification and the Application
of the Functionalistic Theory to Individual Cases
The trend toward progressive expansion of the power of coastal States over adjacent
seas is doubtless the most noticeable phenomenon that emerges in observing the
practice of the international law of the sea, from the earliest to the contemporary.
The Geneva Codification attempted to resolve the conflict of interest between
coastal State and other States, a conflict that became increasingly exacerbated after
World War II as a consequence of economic growth, the rebirth of commerce, technological evolution and the new concerns of international policy. This attempt was
accomplished by giving preference to the spatial criterion, certainly simpler compared to the functional criterion that instead implied a detailed inquiry by the interpreter and was also more “reassuring” from the perspective of legal certainty. There
was, however, a problem, perhaps one that was underestimated by the codifiers but
that Conforti pointed out in his monograph, and that is that the choice of a spatial
criterion is logical only if accompanied by an exact delimitation of space! On this
the delegations did not agree, first with regard to the maximum extension of the territorial sea, defined by means of the spatial criterion but without any indications
regarding its outer boundary
5
; and secondly with reference to the contiguous zones
in matters regarding customs police or fishing, and the continental shelf. Conforti
will later indicate all the limits of the four Conventions issuing from the Geneva
codifications in a specific commentary following the conclusion of negotiations.
4 On this point see Cataldi (1990), p. 78, note 187.
5 International Convention on the Territorial Sea and the Contiguous Zone, Geneva, 29 April 1958,
516 UNTS 2015, Art. 1: “[t]he sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea. This sovereignty is
exercised subject to the provisions of these articles and to other rules of international law”.
The Contribution of Benedetto Conforti to the International Law of the Sea
Hence the assertion of ‘functional’ protection of coastal interests, and the negation
of spatial protection, with reference also to contemporaneity, that is, the era of the
Geneva codification. As we will soon see, the results of this codification confirmed
these theses, and, as will note later on, the “functionalist” theory will reappear in
later writings of the Maestro as it contextualized the evolution of international practice on the subject. A functional delimitation of the power of the State can also be
accompanied by a spatial delimitation when its exercise must be contained within
certain geographic limits; but can also be envisaged, one might say, in its ‘pure’
state, without considering the space in which the State intervention takes place. His
theory is thus correct and convincing, notwithstanding the fact that in certain contexts the spatial criterion later prevailed, as is the case, surely the most evident, of
the territorial sea. In this writer’s opinion, by the way, affirmation of the territoriality
of this marine space took place in an era preceding the one indicated in Conforti’s
writings.
4
2 The Geneva Codification and the Application
of the Functionalistic Theory to Individual Cases
The trend toward progressive expansion of the power of coastal States over adjacent
seas is doubtless the most noticeable phenomenon that emerges in observing the
practice of the international law of the sea, from the earliest to the contemporary.
The Geneva Codification attempted to resolve the conflict of interest between
coastal State and other States, a conflict that became increasingly exacerbated after
World War II as a consequence of economic growth, the rebirth of commerce, technological evolution and the new concerns of international policy. This attempt was
accomplished by giving preference to the spatial criterion, certainly simpler compared to the functional criterion that instead implied a detailed inquiry by the interpreter and was also more “reassuring” from the perspective of legal certainty. There
was, however, a problem, perhaps one that was underestimated by the codifiers but
that Conforti pointed out in his monograph, and that is that the choice of a spatial
criterion is logical only if accompanied by an exact delimitation of space! On this
the delegations did not agree, first with regard to the maximum extension of the territorial sea, defined by means of the spatial criterion but without any indications
regarding its outer boundary
5
; and secondly with reference to the contiguous zones
in matters regarding customs police or fishing, and the continental shelf. Conforti
will later indicate all the limits of the four Conventions issuing from the Geneva
codifications in a specific commentary following the conclusion of negotiations.
4 On this point see Cataldi (1990), p. 78, note 187.
5 International Convention on the Territorial Sea and the Contiguous Zone, Geneva, 29 April 1958,
516 UNTS 2015, Art. 1: “[t]he sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea. This sovereignty is
exercised subject to the provisions of these articles and to other rules of international law”.
The Contribution of Benedetto Conforti to the International Law of the Sea