11
place on an Indian boat. He also warns against the possible, and erroneous, recourse
to Art. 97 UNCLOS which, in prohibiting any State other than the flag state or the
national state of the author of the incident from exercising its jurisdiction, makes
exclusive reference to collisions and other incidents of navigation.
The other paper seems very relevant as in a certain sense it concludes that discourse initiated in far-off 1957 in his book on the “Regime giuridico dei mari”. In
this text Conforti discusses the merits and importance of the functional dimension
of State power in marine spaces in modern international law, that is, in an era marked
by the emergence, especially within UNCLOS, of ‘spatial’ institutions to the benefit
of the coastal State.
31
An initial example of this importance is customs surveillance.
He demonstrates that States take a functional approach in safeguarding this interest,
and that therefore the limit of 24 miles envisaged today for the contiguous zone is
not consistent with customary law. This thesis does not appear to be exaggerated; it
is sufficient to observe the data contained in practice revealing the exercise of powers of prevention and repression extending well beyond such a limit, and this also
with reference to such sectors as drug trafficking or migrant trafficking as per recent
Italian case law.
32
The same conclusion is then reached regarding State powers over
piracy. The power of prevention and repression of each State over foreign ships
involved in this phenomenon ceases if the ship is in the territorial sea of another
State. But if the coastal State is not able to exercise effective control in its territorial
sea, the functional rule regarding piracy is no longer restricted by the need to respect
territorial space and any State can thus intervene. He consequently states that in the
case of Somalia (Failed State), both the adoption of an ad hoc resolution by the UN
Security Council authorizing intervention by other States within 12 miles from the
coastline of that country, and the agreement of the ‘provisional government’ of that
country, were not necessary in enacting prevention and repression of piracy. He then
qualifies such actions as ‘pleonastic’. Other examples of the exercise of functional
powers are found in international practice with reference to other sectors of the law
of the sea. Conforti names them all, demonstrating, more than 50 years from its
initial formulation, the persisting validity of his theoretical construct.
References
Arangio Ruiz G (1987) Delimitazione della zona economica esclusiva. In: Leanza U (ed) Il regime
giuridico internazionale del Mare Mediterraneo. Giuffré, Milano, pp 183–186
Cataldi G (1982) Sulla competenza CEE in materia di pesca. Foro italiano 105(4):260–265
Cataldi G (1990) Il passaggio delle navi straniere nel mare territoriale. Giuffrè, Milano
31 Conforti (2009).
32 On this case law, which allows for intervention against foreign ships on the high seas through the
connection with the coast represented by the transfer of migrants unto boats directed toward Italy,
refer to Cataldi (2015).
The Contribution of Benedetto Conforti to the International Law of the Sea
place on an Indian boat. He also warns against the possible, and erroneous, recourse
to Art. 97 UNCLOS which, in prohibiting any State other than the flag state or the
national state of the author of the incident from exercising its jurisdiction, makes
exclusive reference to collisions and other incidents of navigation.
The other paper seems very relevant as in a certain sense it concludes that discourse initiated in far-off 1957 in his book on the “Regime giuridico dei mari”. In
this text Conforti discusses the merits and importance of the functional dimension
of State power in marine spaces in modern international law, that is, in an era marked
by the emergence, especially within UNCLOS, of ‘spatial’ institutions to the benefit
of the coastal State.
31
An initial example of this importance is customs surveillance.
He demonstrates that States take a functional approach in safeguarding this interest,
and that therefore the limit of 24 miles envisaged today for the contiguous zone is
not consistent with customary law. This thesis does not appear to be exaggerated; it
is sufficient to observe the data contained in practice revealing the exercise of powers of prevention and repression extending well beyond such a limit, and this also
with reference to such sectors as drug trafficking or migrant trafficking as per recent
Italian case law.
32
The same conclusion is then reached regarding State powers over
piracy. The power of prevention and repression of each State over foreign ships
involved in this phenomenon ceases if the ship is in the territorial sea of another
State. But if the coastal State is not able to exercise effective control in its territorial
sea, the functional rule regarding piracy is no longer restricted by the need to respect
territorial space and any State can thus intervene. He consequently states that in the
case of Somalia (Failed State), both the adoption of an ad hoc resolution by the UN
Security Council authorizing intervention by other States within 12 miles from the
coastline of that country, and the agreement of the ‘provisional government’ of that
country, were not necessary in enacting prevention and repression of piracy. He then
qualifies such actions as ‘pleonastic’. Other examples of the exercise of functional
powers are found in international practice with reference to other sectors of the law
of the sea. Conforti names them all, demonstrating, more than 50 years from its
initial formulation, the persisting validity of his theoretical construct.
References
Arangio Ruiz G (1987) Delimitazione della zona economica esclusiva. In: Leanza U (ed) Il regime
giuridico internazionale del Mare Mediterraneo. Giuffré, Milano, pp 183–186
Cataldi G (1982) Sulla competenza CEE in materia di pesca. Foro italiano 105(4):260–265
Cataldi G (1990) Il passaggio delle navi straniere nel mare territoriale. Giuffrè, Milano
31 Conforti (2009).
32 On this case law, which allows for intervention against foreign ships on the high seas through the
connection with the coast represented by the transfer of migrants unto boats directed toward Italy,
refer to Cataldi (2015).
The Contribution of Benedetto Conforti to the International Law of the Sea