4
This general evaluation seems particularly significant: “[t]he Geneva agreements
did not succeed in entirely removing from the assessment of general law, and its
related uncertainties, the conflict of interests that exists between the coastal State
and other States. In our humble opinion this consideration indicates the limits of a
positive judgment regarding the results of the Conference”.
6
The message is all too
clear. Notwithstanding several important merits, which Conforti acknowledges and
comments upon, regarding the clarification of several provisions of the law of the
sea, the codification basically failed in its objective, for recourse to customary laws
to try to resolve the conflict between coastal State and other States, and thus to
evaluate the admissible limits of the ‘historical’ principle of freedom of the seas, is
more necessary than ever.
History will soon prove the Maestro’s perplexities regarding the Geneva
Codification to be true. It is a well-known fact that the four conventions were ratified by a limited number of States and, what is more important, they soon demonstrated their inadequacy in dealing with the demands for a new international
economic order by States coming out of the process of decolonization. And in fact,
as early as the beginning of the seventies work began on the third United Nations
Conference on the Law of the Sea, a conference that in 1982 will lead to the
Convention of Montego Bay (UNCLOS).
In a series of subsequent writings Conforti confirms his ‘functionalist’ theory,
applying it to several cases. First, in a brief article concerning a ‘classic’ of the law
of the sea, wartime contraband in peacetime. In this writing he examines an incident
that occurred on the high seas (capture by French authorities of a Czech merchant
ship suspected of transporting weapons to the Algerian guerilla). On the high seas
exception to the power of the flag State is justified, in this case, only because there
is an exercise of government authority recognized as functional to the pursuit of
specific interests admitted by international law.
7
In a similar manner, with respect to fishing, the controversy that placed Iceland
in opposition to the United Kingdom consequent to Iceland’s decision to reserve
fishing in the adjacent seas to national fishermen is viewed by Conforti in functionalistic terms. He demonstrates the weakness of the United Kingdom’s claim, which
was based on ‘historical titles’, given the strong and qualified interest of Iceland,
that is on the crucial needs of the community, as the inhabitants of the island had
depended economically on fishing since time immemorial.
8
A few years later this
problem will be taken up once again in more general terms. Conforti takes note of
the evolution of case law on fishing rights and thus of the new limit of 12 miles that
became affirmed over time, to the point of theorizing that, within this limit, for purposes of fishing control, no specific justification based on the economic and social
interests of coastal populations is required as such interests are to be considered
implicitly present.
9
In this article he pinpoints the precise moment in which the
6 Conforti (1958), specifically p. 218 (our translation).
7 Conforti (1959a).
8 Conforti (1959b).
9 Conforti (1966).
G. Cataldi
This general evaluation seems particularly significant: “[t]he Geneva agreements
did not succeed in entirely removing from the assessment of general law, and its
related uncertainties, the conflict of interests that exists between the coastal State
and other States. In our humble opinion this consideration indicates the limits of a
positive judgment regarding the results of the Conference”.
6
The message is all too
clear. Notwithstanding several important merits, which Conforti acknowledges and
comments upon, regarding the clarification of several provisions of the law of the
sea, the codification basically failed in its objective, for recourse to customary laws
to try to resolve the conflict between coastal State and other States, and thus to
evaluate the admissible limits of the ‘historical’ principle of freedom of the seas, is
more necessary than ever.
History will soon prove the Maestro’s perplexities regarding the Geneva
Codification to be true. It is a well-known fact that the four conventions were ratified by a limited number of States and, what is more important, they soon demonstrated their inadequacy in dealing with the demands for a new international
economic order by States coming out of the process of decolonization. And in fact,
as early as the beginning of the seventies work began on the third United Nations
Conference on the Law of the Sea, a conference that in 1982 will lead to the
Convention of Montego Bay (UNCLOS).
In a series of subsequent writings Conforti confirms his ‘functionalist’ theory,
applying it to several cases. First, in a brief article concerning a ‘classic’ of the law
of the sea, wartime contraband in peacetime. In this writing he examines an incident
that occurred on the high seas (capture by French authorities of a Czech merchant
ship suspected of transporting weapons to the Algerian guerilla). On the high seas
exception to the power of the flag State is justified, in this case, only because there
is an exercise of government authority recognized as functional to the pursuit of
specific interests admitted by international law.
7
In a similar manner, with respect to fishing, the controversy that placed Iceland
in opposition to the United Kingdom consequent to Iceland’s decision to reserve
fishing in the adjacent seas to national fishermen is viewed by Conforti in functionalistic terms. He demonstrates the weakness of the United Kingdom’s claim, which
was based on ‘historical titles’, given the strong and qualified interest of Iceland,
that is on the crucial needs of the community, as the inhabitants of the island had
depended economically on fishing since time immemorial.
8
A few years later this
problem will be taken up once again in more general terms. Conforti takes note of
the evolution of case law on fishing rights and thus of the new limit of 12 miles that
became affirmed over time, to the point of theorizing that, within this limit, for purposes of fishing control, no specific justification based on the economic and social
interests of coastal populations is required as such interests are to be considered
implicitly present.
9
In this article he pinpoints the precise moment in which the
6 Conforti (1958), specifically p. 218 (our translation).
7 Conforti (1959a).
8 Conforti (1959b).
9 Conforti (1966).
G. Cataldi