1945 it has become pluri-dimensional, encompassing the dimensions of surface,
atmosphere and the seabed and subsoil underwater. Upon the discovery of riches of
the seabed and subsoil, the law of the sea was no longer a mere communicational
law, but rather a law of resources, aimed at regulating more than just the water
surface.
Increased economic interests in the various dimensions of the oceans reinforced
developing states’ disagreement with the short length of the territorial sea, traditionally fixed at 3 nm. Moreover, the unequal access to the oceans and its resources by
states with larger capabilities and greater technical knowledge prompted developing
countries to seek for exclusive access to a share of marine resources adjacent to the
shore. Prior to the signature of the 1982 Convention on the Law of the Sea
(UNCLOS),
7 and within the highly politicized and ideological context of the Cold
War, the oceans served as a thermometer to estimate the political and economic
tension between the maritime powers (a category usually equivalent to the “industrialized North”) and developing coastal states (a category usually associated with
the “global South”). In this sense, the decades preceding UNCLOS were marked by
bolder jurisdictional assertions of coastal states who dismissed the traditional dual
division of the seas and the prevalence of the Grotian freedom of the seas as unfair
towards developing states and, therefore, conflict-prone.
Upon the adoption of UNCLOS, the international community migrated from a
dual- to a multiple division of the oceans, in which several newly codified maritime
zones reflected political and not ecological boundaries.
8 The freshly conceived
partition encompassed the contiguous zone (CZ), the exclusive economic zone
(EEZ), the continental shelf (CS), the high seas (HS) and the Area, among others,
each endowed with a particular legal regime. To make it even more complicated, the
maritime zones often overlap, and so do their legal regimes.
9
In order to enable the functioning of such a complex system, UNCLOS grounded
the new division on a few basic premises. Firstly, the distinction between marine
sovereignty and jurisdiction, according to which coastal states were accorded sovereignty, or very extensive rights, over the territorial sea, but functional jurisdiction
over other adjacent zones. The concept of functional jurisdiction is much more
restrictive than that of sovereignty, and thus limited ratione materiae and ratione
loci, depending on the maritime space in question. Materially, jurisdiction in the
newly created zones relates to specific functions or activities of coastal states.
Ratione loci, the competences of coastal states were limited to the boundaries of
the maritime space at stake. Another key premise which inspired the new division of
the oceans was the principle of regression, in line with which coastal states’ powers
7 UN Convention on the Law of the Sea, UNTS vol. 1833, 10 December 1982.
8 Klemm (1999), p. 431.
9 The author of this book has published a paper in the Brazilian Journal of International Law, on the
clash between the principles of freedom of the seas and that of territorial sovereignty, and how it has
been shaping the law of the sea since the birth of the discipline. See Ventura (2015), p. 52.
1.1 Factual Background and Theoretical Framework
3
atmosphere and the seabed and subsoil underwater. Upon the discovery of riches of
the seabed and subsoil, the law of the sea was no longer a mere communicational
law, but rather a law of resources, aimed at regulating more than just the water
surface.
Increased economic interests in the various dimensions of the oceans reinforced
developing states’ disagreement with the short length of the territorial sea, traditionally fixed at 3 nm. Moreover, the unequal access to the oceans and its resources by
states with larger capabilities and greater technical knowledge prompted developing
countries to seek for exclusive access to a share of marine resources adjacent to the
shore. Prior to the signature of the 1982 Convention on the Law of the Sea
(UNCLOS),
7 and within the highly politicized and ideological context of the Cold
War, the oceans served as a thermometer to estimate the political and economic
tension between the maritime powers (a category usually equivalent to the “industrialized North”) and developing coastal states (a category usually associated with
the “global South”). In this sense, the decades preceding UNCLOS were marked by
bolder jurisdictional assertions of coastal states who dismissed the traditional dual
division of the seas and the prevalence of the Grotian freedom of the seas as unfair
towards developing states and, therefore, conflict-prone.
Upon the adoption of UNCLOS, the international community migrated from a
dual- to a multiple division of the oceans, in which several newly codified maritime
zones reflected political and not ecological boundaries.
8 The freshly conceived
partition encompassed the contiguous zone (CZ), the exclusive economic zone
(EEZ), the continental shelf (CS), the high seas (HS) and the Area, among others,
each endowed with a particular legal regime. To make it even more complicated, the
maritime zones often overlap, and so do their legal regimes.
9
In order to enable the functioning of such a complex system, UNCLOS grounded
the new division on a few basic premises. Firstly, the distinction between marine
sovereignty and jurisdiction, according to which coastal states were accorded sovereignty, or very extensive rights, over the territorial sea, but functional jurisdiction
over other adjacent zones. The concept of functional jurisdiction is much more
restrictive than that of sovereignty, and thus limited ratione materiae and ratione
loci, depending on the maritime space in question. Materially, jurisdiction in the
newly created zones relates to specific functions or activities of coastal states.
Ratione loci, the competences of coastal states were limited to the boundaries of
the maritime space at stake. Another key premise which inspired the new division of
the oceans was the principle of regression, in line with which coastal states’ powers
7 UN Convention on the Law of the Sea, UNTS vol. 1833, 10 December 1982.
8 Klemm (1999), p. 431.
9 The author of this book has published a paper in the Brazilian Journal of International Law, on the
clash between the principles of freedom of the seas and that of territorial sovereignty, and how it has
been shaping the law of the sea since the birth of the discipline. See Ventura (2015), p. 52.
1.1 Factual Background and Theoretical Framework
3