5
consensus of the States regarding the exact measurement of marine territory in spatial terms is formed. The International Court of Justice (ICJ) did not demonstrate the
same ‘readiness’ to understand these aspects as in the ruling handed down on 25th
July 1974 in the case between Iceland and the United Kingdom (Fishery Jurisdiction
Case), it emphasized the ‘historical and preferential rights’ of the United Kingdom,
in contrast to prevailing practice. It is no accident that this decision is one of the
greatest examples of ICJ decisions that have never been implemented.
3 His Writings During the Period of Crisis of the Principle
of “Freedom of the Seas” and of the Third Conference
on the Law of the Sea
During the 1960s and 1970s, the international law of the sea was characterized by a
significant state of uncertainty as tensions between coastal States and States interested in freedom of navigation, between coastal States and ‘land-locked’ States,
between industrialized States and developing States, reached their highest level.
The exact scope of the principle of ‘freedom of the seas’ was discussed continuously, and the progressive expansion of research and exploitation’s activities on the
continental shelf made the legal setup of the various institutions even more complex. Regarding this latter aspect, in 1969 the ICJ issued a ruling, that in many
respects is considered historical, in the controversy between the Federal Republic of
Germany on the one hand and Denmark and the Netherlands on the other, regarding
delimitation of the North Sea continental shelf.
10
In this case the ICJ refuted the
customary nature of the criterion of equidistance regarding the continental shelf as
envisaged by the 1958 Geneva Convention. But what is interesting here is the fact
that once again Conforti, in commenting this decision, and though agreeing with the
solution reached by the ICJ, reiterated the need to recur to a functional criterion in
evaluating the scope of the rights of coastal States in the absence of a certain geographic limit, a limit whose existence the ICJ had excluded, though opting for a
‘spatial’ type solution.
11
The regime of freedom of the seas, he points out, seems by
now to be ‘compromised’, yet without attaining the goal of legal certainty. Regarding
the resources of the shelf that were well beyond coastal claims, it should be noted
that he did not conceal his sympathies for the claims of developing States, and thus
for the internationalization of resources according to the proposals that were being
discussed in the United Nations General Assembly at the time.
12
The crisis of the customary principle of freedom of the seas, a noteworthy and
fundamental rule of the international law of the sea, was intensifying because of two
10 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal
Republic of Germany v. The Netherlands), Judgment, 20 February 1969.
11 Conforti (1969a).
12 Conforti (1969b).
The Contribution of Benedetto Conforti to the International Law of the Sea
consensus of the States regarding the exact measurement of marine territory in spatial terms is formed. The International Court of Justice (ICJ) did not demonstrate the
same ‘readiness’ to understand these aspects as in the ruling handed down on 25th
July 1974 in the case between Iceland and the United Kingdom (Fishery Jurisdiction
Case), it emphasized the ‘historical and preferential rights’ of the United Kingdom,
in contrast to prevailing practice. It is no accident that this decision is one of the
greatest examples of ICJ decisions that have never been implemented.
3 His Writings During the Period of Crisis of the Principle
of “Freedom of the Seas” and of the Third Conference
on the Law of the Sea
During the 1960s and 1970s, the international law of the sea was characterized by a
significant state of uncertainty as tensions between coastal States and States interested in freedom of navigation, between coastal States and ‘land-locked’ States,
between industrialized States and developing States, reached their highest level.
The exact scope of the principle of ‘freedom of the seas’ was discussed continuously, and the progressive expansion of research and exploitation’s activities on the
continental shelf made the legal setup of the various institutions even more complex. Regarding this latter aspect, in 1969 the ICJ issued a ruling, that in many
respects is considered historical, in the controversy between the Federal Republic of
Germany on the one hand and Denmark and the Netherlands on the other, regarding
delimitation of the North Sea continental shelf.
10
In this case the ICJ refuted the
customary nature of the criterion of equidistance regarding the continental shelf as
envisaged by the 1958 Geneva Convention. But what is interesting here is the fact
that once again Conforti, in commenting this decision, and though agreeing with the
solution reached by the ICJ, reiterated the need to recur to a functional criterion in
evaluating the scope of the rights of coastal States in the absence of a certain geographic limit, a limit whose existence the ICJ had excluded, though opting for a
‘spatial’ type solution.
11
The regime of freedom of the seas, he points out, seems by
now to be ‘compromised’, yet without attaining the goal of legal certainty. Regarding
the resources of the shelf that were well beyond coastal claims, it should be noted
that he did not conceal his sympathies for the claims of developing States, and thus
for the internationalization of resources according to the proposals that were being
discussed in the United Nations General Assembly at the time.
12
The crisis of the customary principle of freedom of the seas, a noteworthy and
fundamental rule of the international law of the sea, was intensifying because of two
10 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal
Republic of Germany v. The Netherlands), Judgment, 20 February 1969.
11 Conforti (1969a).
12 Conforti (1969b).
The Contribution of Benedetto Conforti to the International Law of the Sea