freedom, trading with peoples from all parts of the world. Davor Vidas and Peter
Schei see in the mare liberum theory the ideological foundation of the law of the sea,
and postulate that freedom of the seas “facilitated the emergence of the forces that
led to the Industrial Revolution”.
55 The distinction between open seas and territorial
waters marked the legal beginning of dualism between two distinct zones of the
ocean.
On the other side of the equation, coastal states that for centuries have watched
the harvest of their natural resources by merchant fleets of developed countries were
gradually claiming exclusivity to marine resources offshore. Consequently, after
World War I traditional maritime states witnessed a stark decline in their powers
within the international arena. Equally noteworthy was the increasing jurisdictional
claims of developing states to secure ocean resources, mainly fisheries, which
responded for a burgeoning part of their economic activity. Dissatisfaction with
the then world ocean order increased in the twentieth century. One was by then faced
with a sort of “tug-of-war” between coastal States and maritime powers around the
allocation of territorial sovereignty and navigation freedoms, respectively. Such an
opposition played out in every single part of UNCLOS. This opposition, and the
contribution of Latin American states in shaping the “new law of the sea” will be
analyzed in a subitem on the phenomenon of “creeping jurisdiction”. Important to
note is that the current status of the historical dichotomy points towards a renewed
balance between both principles, with greater weight attributed to the principle of
“respect for sovereignty and jurisdiction”.
56
4.3.1 Coastal State Sovereignty in the Territorial Sea
Coastal states exercise authority and jurisdiction not only over their internal or
archipelagic waters, but also in waters beyond their land territory. The basis for
exercising such jurisdiction is still, nonetheless, the territory. In fact, “authority flows
automatically from the sovereignty exercised over the land territory and so all coastal
States do in fact have a territorial sea”,
57 and comprises competences to prescribe,
adjudicate and enforce domestic laws. The jurisdiction of the coastal State over
seaward maritime areas remains “nothing less that the projection of State sovereignty
onto the sea”.
58 The territoriality of the State influences all maritime zones, from the
internal waters, through the territorial sea, reaching up to the exclusive economic
zones and the continental shelf. Yet, jurisdiction exercised by coastal States over the
ocean is not identical to that exercised on land—case in point is the right of innocent
passage, a pillar of UNCLOS, but non-existent on land.
55 Vidas and Schei (2010), p. 6.
56 Article 118 (1) UNCLOS, on the promotion of international cooperation.
57 Evans (2014), p. 657.
58 Gavouneli (2007), p. 39.
4.3 From Sovereignty to Progressive Jurisdiction in the New Law of the Sea
99
Schei see in the mare liberum theory the ideological foundation of the law of the sea,
and postulate that freedom of the seas “facilitated the emergence of the forces that
led to the Industrial Revolution”.
55 The distinction between open seas and territorial
waters marked the legal beginning of dualism between two distinct zones of the
ocean.
On the other side of the equation, coastal states that for centuries have watched
the harvest of their natural resources by merchant fleets of developed countries were
gradually claiming exclusivity to marine resources offshore. Consequently, after
World War I traditional maritime states witnessed a stark decline in their powers
within the international arena. Equally noteworthy was the increasing jurisdictional
claims of developing states to secure ocean resources, mainly fisheries, which
responded for a burgeoning part of their economic activity. Dissatisfaction with
the then world ocean order increased in the twentieth century. One was by then faced
with a sort of “tug-of-war” between coastal States and maritime powers around the
allocation of territorial sovereignty and navigation freedoms, respectively. Such an
opposition played out in every single part of UNCLOS. This opposition, and the
contribution of Latin American states in shaping the “new law of the sea” will be
analyzed in a subitem on the phenomenon of “creeping jurisdiction”. Important to
note is that the current status of the historical dichotomy points towards a renewed
balance between both principles, with greater weight attributed to the principle of
“respect for sovereignty and jurisdiction”.
56
4.3.1 Coastal State Sovereignty in the Territorial Sea
Coastal states exercise authority and jurisdiction not only over their internal or
archipelagic waters, but also in waters beyond their land territory. The basis for
exercising such jurisdiction is still, nonetheless, the territory. In fact, “authority flows
automatically from the sovereignty exercised over the land territory and so all coastal
States do in fact have a territorial sea”,
57 and comprises competences to prescribe,
adjudicate and enforce domestic laws. The jurisdiction of the coastal State over
seaward maritime areas remains “nothing less that the projection of State sovereignty
onto the sea”.
58 The territoriality of the State influences all maritime zones, from the
internal waters, through the territorial sea, reaching up to the exclusive economic
zones and the continental shelf. Yet, jurisdiction exercised by coastal States over the
ocean is not identical to that exercised on land—case in point is the right of innocent
passage, a pillar of UNCLOS, but non-existent on land.
55 Vidas and Schei (2010), p. 6.
56 Article 118 (1) UNCLOS, on the promotion of international cooperation.
57 Evans (2014), p. 657.
58 Gavouneli (2007), p. 39.
4.3 From Sovereignty to Progressive Jurisdiction in the New Law of the Sea
99