sustainable exploitation of marine natural resources, while continuously recognizing
the relevance of navigational freedoms.
17
The main modifications (or advancements, if one may) operated by the adoption
of UNCLOS are the following. Firstly, it shifted the balance of powers between flag
states, more interested in maintaining freedom of navigation, and coastal states,
dedicated to regulating and controlling activities off their coast. Traditionally, the
conflicting nature of the law of the sea could be summed up to the ancient and
opposing doctrines of “open seas” (mare liberum) and “closed seas” (mare
clausum). Based on such fundamental opposition, the law of the sea has always
been “made, changed, challenged and remade.”
18 Each doctrine gives birth to
different principles of the law of the sea. On the one hand, the mare liberum thesis
is supported by the freedom of the seas’ principle, which had in Hugo Grotius its
main defender.
19 On the other, the mare clausum, defended by authors such as
William Welwood.
Nowadays, prevalence of the principle of freedom of the seas was called in
question and the balance leaned towards the principle of sovereignty, as the Convention codified additional powers to coastal states. A most relevant factor during
negotiations was the participation of newly independent African and Asian states,
which embraced positions significantly different from those of their colonial predecessors. Conjointly with other third world countries, sympathetic to the political
orientation of the Group of 77,
20 they played an important role during the III UN
Conference on the Law of the Sea. Against this backdrop, the Conference may be
associated to the phenomenon of the “rise of coastal states”, one that fulfilled old
demands of exclusive jurisdiction over marine resources. The solution found by the
international community to balance such antagonistic views was to crystalize in
UNCLOS a primordial logic for the law of the sea: “as the maritime zones become
more distant from the coast, coastal State jurisdiction reduces and the strength of
high seas freedoms increases”.
21
Secondly, that power shift has also been potentialized by the emergence of a key
principle for the management of the oceans, namely their seabed. In fact, the
common heritage of mankind (CHM) principle altered dramatically the previous
balance between the ancient principles of mare liberum and territorial sovereignty.
The common heritage principle will trigger profound changes on the continental
shelf regime, in special given the limitation of national continental shelves and the
establishing of a hybrid treatment for activities on the continental shelf beyond
17 Birnie et al. (2009), p. 383.
18 Pirtle (2000), p. 7.
19 See Grotius (2004), p. 95.
20 The Group of 77 advocated a more radical form of “common heritage of mankind” principle,
based on the ideology underpinning the so-called New International Economic Order (NIEO),
designed to rebalance economic relations between industrialized countries of the North and poorly
developed states of the South, as discussed in Chap. 5.
21 Mossop (2016), p. 8.
24
2 The General International Legal Regime of the Continental Shelf
the relevance of navigational freedoms.
17
The main modifications (or advancements, if one may) operated by the adoption
of UNCLOS are the following. Firstly, it shifted the balance of powers between flag
states, more interested in maintaining freedom of navigation, and coastal states,
dedicated to regulating and controlling activities off their coast. Traditionally, the
conflicting nature of the law of the sea could be summed up to the ancient and
opposing doctrines of “open seas” (mare liberum) and “closed seas” (mare
clausum). Based on such fundamental opposition, the law of the sea has always
been “made, changed, challenged and remade.”
18 Each doctrine gives birth to
different principles of the law of the sea. On the one hand, the mare liberum thesis
is supported by the freedom of the seas’ principle, which had in Hugo Grotius its
main defender.
19 On the other, the mare clausum, defended by authors such as
William Welwood.
Nowadays, prevalence of the principle of freedom of the seas was called in
question and the balance leaned towards the principle of sovereignty, as the Convention codified additional powers to coastal states. A most relevant factor during
negotiations was the participation of newly independent African and Asian states,
which embraced positions significantly different from those of their colonial predecessors. Conjointly with other third world countries, sympathetic to the political
orientation of the Group of 77,
20 they played an important role during the III UN
Conference on the Law of the Sea. Against this backdrop, the Conference may be
associated to the phenomenon of the “rise of coastal states”, one that fulfilled old
demands of exclusive jurisdiction over marine resources. The solution found by the
international community to balance such antagonistic views was to crystalize in
UNCLOS a primordial logic for the law of the sea: “as the maritime zones become
more distant from the coast, coastal State jurisdiction reduces and the strength of
high seas freedoms increases”.
21
Secondly, that power shift has also been potentialized by the emergence of a key
principle for the management of the oceans, namely their seabed. In fact, the
common heritage of mankind (CHM) principle altered dramatically the previous
balance between the ancient principles of mare liberum and territorial sovereignty.
The common heritage principle will trigger profound changes on the continental
shelf regime, in special given the limitation of national continental shelves and the
establishing of a hybrid treatment for activities on the continental shelf beyond
17 Birnie et al. (2009), p. 383.
18 Pirtle (2000), p. 7.
19 See Grotius (2004), p. 95.
20 The Group of 77 advocated a more radical form of “common heritage of mankind” principle,
based on the ideology underpinning the so-called New International Economic Order (NIEO),
designed to rebalance economic relations between industrialized countries of the North and poorly
developed states of the South, as discussed in Chap. 5.
21 Mossop (2016), p. 8.
24
2 The General International Legal Regime of the Continental Shelf