to note that “freedom” is a relative capacity, i.e. only those financially powerful and
technologically advanced had the choice to navigate large parcels of the world
oceans, explore and exploit its natural resources. Without significant funds nor
socioeconomic development, freedom was but a catch phrase—and that was the
reality of several developing coastal states.
In the juncture of dissatisfaction with the pre-UNCLOS dual-division of the
oceans, the likelihood of conflicts led delegates of 47 states to meet in The Hague
in 1930 with the arduous task of codifying and developing international law in
several fronts, not only in oceanic matters. The Conference was organized by the
League of Nations, who formed a Committee of Experts for the Progressive Codification of International Law in order to represent “the main forms of civilization and
the principal legal systems of the world”.
12 Three topics were at the table, amongst
which the codification of territorial waters, its geographical limits, and the rights and
duties valid therein.
Already then, during the first half of the twentieth century, the international
community had identified pressing issues connected to ocean uses, in special the
degree of coastal state powers offshore and the over-exploitation of high seas
fisheries, both intimately intertwined. At the time, a few suggestions made it to the
headlines, such as the creation of an international bureau endowed with the task of
maintaining a registry of rights beyond certain nautical limits,
13 or even the adoption
of uniform rules of living resources exploitation, including the designation of
reserved zones and seasonal restrictions to high seas fishing.
14 Despite such creative
proposals, the Conference was unable to adopt any final binding document on that
topic. The terms of the debate on maritime jurisdiction were set, yet it would take
states another half a century to negotiate solutions under an encompassing international convention.
The result of inaction was that state practice with regard to territorial waters
continued to vary extensively. As Henry Fraser wrote in 1926, “one country will
claim three miles, another four miles, another six miles”, with such diversity
resulting in harmful effects to international trade and political relations. That author
anticipated suggestions that would be later codified in the 1958 Geneva Conventions
and, after that, in the 1982 UNCLOS, such as the proposition to establish two distinct
zones under the influence of littoral states: the “marginal sea”, where they would
exercise all powers of sovereignty; and a zone beyond that, with a fixed maximum
limit, “up to which a state, if it chose, might exercise jurisdiction for the three or four
special purposes for which each of the said maximum limits would be provided”.
15
Back at the day, however, it was taken for certain that “the nations will hardly
consent to enlarging the marginal sea”. So did the Experts Committee of the 1930
12 League of Nations, Official Journal, Special Supplement, no. 21, 10.
13 Proposal by Walther Schücking, 1925 Meeting of the League of Nations Committee of Experts
for the Progressive Codification of International Law, as commented upon by Vicuña (1999), p. 18.
14 Suarez (1926), p. 231.
15 Fraser (1925), p. 457.
144
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
technologically advanced had the choice to navigate large parcels of the world
oceans, explore and exploit its natural resources. Without significant funds nor
socioeconomic development, freedom was but a catch phrase—and that was the
reality of several developing coastal states.
In the juncture of dissatisfaction with the pre-UNCLOS dual-division of the
oceans, the likelihood of conflicts led delegates of 47 states to meet in The Hague
in 1930 with the arduous task of codifying and developing international law in
several fronts, not only in oceanic matters. The Conference was organized by the
League of Nations, who formed a Committee of Experts for the Progressive Codification of International Law in order to represent “the main forms of civilization and
the principal legal systems of the world”.
12 Three topics were at the table, amongst
which the codification of territorial waters, its geographical limits, and the rights and
duties valid therein.
Already then, during the first half of the twentieth century, the international
community had identified pressing issues connected to ocean uses, in special the
degree of coastal state powers offshore and the over-exploitation of high seas
fisheries, both intimately intertwined. At the time, a few suggestions made it to the
headlines, such as the creation of an international bureau endowed with the task of
maintaining a registry of rights beyond certain nautical limits,
13 or even the adoption
of uniform rules of living resources exploitation, including the designation of
reserved zones and seasonal restrictions to high seas fishing.
14 Despite such creative
proposals, the Conference was unable to adopt any final binding document on that
topic. The terms of the debate on maritime jurisdiction were set, yet it would take
states another half a century to negotiate solutions under an encompassing international convention.
The result of inaction was that state practice with regard to territorial waters
continued to vary extensively. As Henry Fraser wrote in 1926, “one country will
claim three miles, another four miles, another six miles”, with such diversity
resulting in harmful effects to international trade and political relations. That author
anticipated suggestions that would be later codified in the 1958 Geneva Conventions
and, after that, in the 1982 UNCLOS, such as the proposition to establish two distinct
zones under the influence of littoral states: the “marginal sea”, where they would
exercise all powers of sovereignty; and a zone beyond that, with a fixed maximum
limit, “up to which a state, if it chose, might exercise jurisdiction for the three or four
special purposes for which each of the said maximum limits would be provided”.
15
Back at the day, however, it was taken for certain that “the nations will hardly
consent to enlarging the marginal sea”. So did the Experts Committee of the 1930
12 League of Nations, Official Journal, Special Supplement, no. 21, 10.
13 Proposal by Walther Schücking, 1925 Meeting of the League of Nations Committee of Experts
for the Progressive Codification of International Law, as commented upon by Vicuña (1999), p. 18.
14 Suarez (1926), p. 231.
15 Fraser (1925), p. 457.
144
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .