6
reasons. On the one hand the ‘creeping jurisdiction’ of coastal States, on the other
the inadequacy of this principle to manage new State claims of an essentially economic nature. Conforti therefore questions the persistent validity of this principle
and its role in light of the supervening practice.
13
In the course of the first sessions
of the third Conference on the Law of the Sea the consent of all the States was
already self-evident concerning the establishment of the new institution of an
Exclusive Economic Zone (EEZ) which broke away from the traditional discipline
of relations between coastal State and other States. Conforti points out the inverse
role of functional powers in such a marine space, since functional powers in the
EEZ are no longer an attribute of the coastal State but of the other States! In the
event of doubt, he states, it is not the principle of freedom of the sea that prevails,
but rather each State (coastal and third State) is obliged to remain within its own
limits. He draws attention to the decline of the principle of freedom of the seas also
in areas beyond coastal jurisdiction. In this case, it is interesting to note that, while
at first
14
he affirmed the need to recur to the principle of freedom of the seas until
such time as there was an agreement between States involved in the codification, in
writing of a ‘stand-still or freezing clause’ regarding this principle, to which he
attributed a ‘freezing’ effect in respect of any demand for appropriation of the
resources of the seabed, he later revised his position in light of the developments of
the Third Conference on the Law of the Sea, stating that unilateral exploitation is
possible if the collective interest is safeguarded.
15
There accordingly emerges a distinctive trait in Conforti’s scientific production.
By continuously reviewing the developments in international practice, he demonstrates that he is always ready to revise his positions. This is especially obvious in
the field of the law of the sea, for it was during these years of his greatest scientific
involvement that several important changes in practice emerged. Perhaps the most
significant example is contained in the first edition of his manual of international
law, where he finally admits the existence of the institution of the territorial sea in
customary law.
16
On the other hand, he did not neglect pointing out where practice
13 Conforti (1975a).
14 Ibidem, passim.
15 Conforti (1978).
16 Conforti (1976), p. 132: “[i]n admitting the existence of the territorial sea in light of customary
law we abandon a position that is strongly defended in many previous writings, starting with the
book ‘Il regime giuridico dei mari’, Naples, 1957, chapter V. At the time we maintained that it was
impossible to equate the territorial sea to the territory because of the absence of an agreement
between States on the external limit of the territorial sea (even the Geneva Convention contains no
regulation in this regard), a boundary that some States wanted to restrict to 3 miles from the coast,
others extended to 6, 12, 15… and even up to 200 miles! It truly seemed impossible or at the very
least extremely contradictory to configure a territory…without borders. And we believed therefore
that a State had only functional powers over adjacent seas, powers that could not be exercised
within spatial limits but only when indispensable to ensure the undisturbed continuation of the life
of coastal communities. The reason for this…surrender is exactly the opposite of the reason we
defended such position: one of the results of the Third Conference on the Law of the Sea, evident
in the work of the Caracas session (1974) and the Geneva session (1975), is the general acceptance
of the 12-mile limit” (our translation). Note that his strenuous defense of application of the theory
G. Cataldi
reasons. On the one hand the ‘creeping jurisdiction’ of coastal States, on the other
the inadequacy of this principle to manage new State claims of an essentially economic nature. Conforti therefore questions the persistent validity of this principle
and its role in light of the supervening practice.
13
In the course of the first sessions
of the third Conference on the Law of the Sea the consent of all the States was
already self-evident concerning the establishment of the new institution of an
Exclusive Economic Zone (EEZ) which broke away from the traditional discipline
of relations between coastal State and other States. Conforti points out the inverse
role of functional powers in such a marine space, since functional powers in the
EEZ are no longer an attribute of the coastal State but of the other States! In the
event of doubt, he states, it is not the principle of freedom of the sea that prevails,
but rather each State (coastal and third State) is obliged to remain within its own
limits. He draws attention to the decline of the principle of freedom of the seas also
in areas beyond coastal jurisdiction. In this case, it is interesting to note that, while
at first
14
he affirmed the need to recur to the principle of freedom of the seas until
such time as there was an agreement between States involved in the codification, in
writing of a ‘stand-still or freezing clause’ regarding this principle, to which he
attributed a ‘freezing’ effect in respect of any demand for appropriation of the
resources of the seabed, he later revised his position in light of the developments of
the Third Conference on the Law of the Sea, stating that unilateral exploitation is
possible if the collective interest is safeguarded.
15
There accordingly emerges a distinctive trait in Conforti’s scientific production.
By continuously reviewing the developments in international practice, he demonstrates that he is always ready to revise his positions. This is especially obvious in
the field of the law of the sea, for it was during these years of his greatest scientific
involvement that several important changes in practice emerged. Perhaps the most
significant example is contained in the first edition of his manual of international
law, where he finally admits the existence of the institution of the territorial sea in
customary law.
16
On the other hand, he did not neglect pointing out where practice
13 Conforti (1975a).
14 Ibidem, passim.
15 Conforti (1978).
16 Conforti (1976), p. 132: “[i]n admitting the existence of the territorial sea in light of customary
law we abandon a position that is strongly defended in many previous writings, starting with the
book ‘Il regime giuridico dei mari’, Naples, 1957, chapter V. At the time we maintained that it was
impossible to equate the territorial sea to the territory because of the absence of an agreement
between States on the external limit of the territorial sea (even the Geneva Convention contains no
regulation in this regard), a boundary that some States wanted to restrict to 3 miles from the coast,
others extended to 6, 12, 15… and even up to 200 miles! It truly seemed impossible or at the very
least extremely contradictory to configure a territory…without borders. And we believed therefore
that a State had only functional powers over adjacent seas, powers that could not be exercised
within spatial limits but only when indispensable to ensure the undisturbed continuation of the life
of coastal communities. The reason for this…surrender is exactly the opposite of the reason we
defended such position: one of the results of the Third Conference on the Law of the Sea, evident
in the work of the Caracas session (1974) and the Geneva session (1975), is the general acceptance
of the 12-mile limit” (our translation). Note that his strenuous defense of application of the theory
G. Cataldi