7
was still uncertain and ambiguous, consequently revealing the limits of his
analysis.
17
Returning to the EEZ, it must be said that during the years in which this new
institution was becoming consolidated in international law, doctrine was engaged
not only in defining the breadth and limits of the zone’s regime but also in describing its legal nature as a whole, qualifying this space as part of the open sea, the
territorial sea, or as a sui generis zone, according to circumstances. In perfect coherence with his pragmatism, and with his beliefs regarding other, similar discussions,
Conforti defined this problem as “sterile as it is theoretical”.
18
Vice versa, he focused
on a central question in those years, one that was crucial but incomprehensibly little
studied and analyzed, and that is the relationship between the new customary norm
authorizing the coastal State to establish an EEZ up to 200 miles from the coast and
previous conventional norms by which coastal States were bound to a different discipline, one that was much more liberal in respect of other States. In this case,
Conforti wondered, is application of the EEZ imposed as a ius superveniens or must
priority be given to previous agreements, as sources of special law ratione materiae
or personarum? The question was significant, both from a general aspect, that is
with respect to the theoretical ‘accommodation’ regarding the succession over time
of international norms, and, specifically, in light of the existence of agreements,
especially on the concession of fishing rights, to be compared with the evolution of
international practice (note that UNCLOS had yet to be signed). Faced with the
issue of the validity of bilateral agreements on fishing rights entered into by France
and Spain (country not yet part of the European Community), the Court of Justice
in Luxemburg unhesitatingly sided with the prevalence of customary law.
19
Conforti
however criticizes this conclusion. Unless subsequent customary law is
of functional powers even to spaces off the coast lasted up to the year prior: Conforti (1975b).
17 See Conforti (1975c), specifically p. 645 (incipit to par. 2), where the author refers to “factors
that indicate the beginning of a new discipline, one that perhaps better fulfills the needs of the era”
(our translation). However, in light of the conflicts that still exist within the international community, he adds that “Rebus sic stantibus it is inevitable that the matter subject of this discussion be
presented in accordance with traditional principles” (our translation).
18 Conforti (1983a), p. VI our translation. An example of another theoretical discussion that did not
greatly interest the Maestro was the ‘monistic’ and ‘dualistic’ debate regarding the relationship
between the international order and the domestic order. He warned, in fact, most recently in
Conforti (2015), p. 336, that “whether one adopts one or the other, the substance doesn’t change:
what is important is to describe how the various categories of international laws are applied and
coordinated with domestic laws” (our translation). These same considerations are contained in his
final writing on the law of the sea, where he refers to a passage of the famous ruling of 1927 handed
down by the Permanent Court of International Justice in the Lotus Case in which it is stated,
regarding the dispute between monists and dualists: “que l’on adopte l’un ou l’autre des deux
systèmes exposés ci-dessus, on abouti, dans le cas d’espèce, au même résultat” (CPJI Recueil
1927, p. 21). Conforti (2014), p. 2623, adds: “[a]llow us to point out that the scarce practical relevance of the dispute between monists and dualists is what we have always maintained” (our
translation).
19 ECJ, Burgoa, C-812/79, Judgment, 14 October 1980, ECLI:EU:C:1980:231, with commentary
by Cataldi (1982).
The Contribution of Benedetto Conforti to the International Law of the Sea
was still uncertain and ambiguous, consequently revealing the limits of his
analysis.
17
Returning to the EEZ, it must be said that during the years in which this new
institution was becoming consolidated in international law, doctrine was engaged
not only in defining the breadth and limits of the zone’s regime but also in describing its legal nature as a whole, qualifying this space as part of the open sea, the
territorial sea, or as a sui generis zone, according to circumstances. In perfect coherence with his pragmatism, and with his beliefs regarding other, similar discussions,
Conforti defined this problem as “sterile as it is theoretical”.
18
Vice versa, he focused
on a central question in those years, one that was crucial but incomprehensibly little
studied and analyzed, and that is the relationship between the new customary norm
authorizing the coastal State to establish an EEZ up to 200 miles from the coast and
previous conventional norms by which coastal States were bound to a different discipline, one that was much more liberal in respect of other States. In this case,
Conforti wondered, is application of the EEZ imposed as a ius superveniens or must
priority be given to previous agreements, as sources of special law ratione materiae
or personarum? The question was significant, both from a general aspect, that is
with respect to the theoretical ‘accommodation’ regarding the succession over time
of international norms, and, specifically, in light of the existence of agreements,
especially on the concession of fishing rights, to be compared with the evolution of
international practice (note that UNCLOS had yet to be signed). Faced with the
issue of the validity of bilateral agreements on fishing rights entered into by France
and Spain (country not yet part of the European Community), the Court of Justice
in Luxemburg unhesitatingly sided with the prevalence of customary law.
19
Conforti
however criticizes this conclusion. Unless subsequent customary law is
of functional powers even to spaces off the coast lasted up to the year prior: Conforti (1975b).
17 See Conforti (1975c), specifically p. 645 (incipit to par. 2), where the author refers to “factors
that indicate the beginning of a new discipline, one that perhaps better fulfills the needs of the era”
(our translation). However, in light of the conflicts that still exist within the international community, he adds that “Rebus sic stantibus it is inevitable that the matter subject of this discussion be
presented in accordance with traditional principles” (our translation).
18 Conforti (1983a), p. VI our translation. An example of another theoretical discussion that did not
greatly interest the Maestro was the ‘monistic’ and ‘dualistic’ debate regarding the relationship
between the international order and the domestic order. He warned, in fact, most recently in
Conforti (2015), p. 336, that “whether one adopts one or the other, the substance doesn’t change:
what is important is to describe how the various categories of international laws are applied and
coordinated with domestic laws” (our translation). These same considerations are contained in his
final writing on the law of the sea, where he refers to a passage of the famous ruling of 1927 handed
down by the Permanent Court of International Justice in the Lotus Case in which it is stated,
regarding the dispute between monists and dualists: “que l’on adopte l’un ou l’autre des deux
systèmes exposés ci-dessus, on abouti, dans le cas d’espèce, au même résultat” (CPJI Recueil
1927, p. 21). Conforti (2014), p. 2623, adds: “[a]llow us to point out that the scarce practical relevance of the dispute between monists and dualists is what we have always maintained” (our
translation).
19 ECJ, Burgoa, C-812/79, Judgment, 14 October 1980, ECLI:EU:C:1980:231, with commentary
by Cataldi (1982).
The Contribution of Benedetto Conforti to the International Law of the Sea