Week Ten, Law and Society

Assignments for Week 10:

I. Read Chapter 9 in your Samaha textbook and Lecture 9 below for the quiz this week.

II.  Cases in class this week:

            Chapter 9, State v. Snowden

            Chapter 9, People v. O’Neil

            Chapter 9, Duest v. State

            Chapter 9, Commonwealth v. Golston

Lecture 9, The Law of the Sea and International Law 

Human Ecology 

1.  The theory behind my work is a theory of human ecology that examines the relationship among population (demographics and population growth), organization (society), environment, and technology (POET).  Most work on ocean law has been a simple chronology of events as they relate to ocean law; the research is descriptive rather than analytical.  My goal with this research is to examine cause and effect relationships between changes in population, organization, environment, and technology as they have had an interactive effect on the changes in the law of the sea.   The following lecture is a very brief history of the law of the sea, and as such, it does not detail the effects of population, organization, environment, and technology on that history, but the reciprocal effects of these four factors on each other and on the law of the sea should be obvious.

The Law of the Sea and International Law

1.  The development of the law of the sea is intertwined with the development of international law and is probably the best way to illustrate international relations as they have changed over time.  The oceans cover 70 percent of the earth's surface and provide humans with food and recreational opportunities, serve as a highway for commercial and military ships, cover sources of energy and other natural resources, and serve as a sink for the waste products of civilization.  Because of the pressure of a growing global population, the impact of technological progress, and the increasing affluence of the world's people, the human race is increasingly in a position to damage the oceans' natural systems, to deplete its renewable resources, and to detract from the natural beauty of the oceans.  This threat to the sea has necessitated international cooperation to manage conflict of use situations and to minimize detrimental effects on the ocean environment.

Historical Development of the Law of the Sea 

1.  In the second century, the position that was codified in Roman law was that the sea was common to all, particularly because the problems of over fishing and depletion of ocean resources had not yet emerged.  After the fall of the Roman Empire, with the division of Western Europe into small States, conflicting claims arose, to gain control over trade routes and fishing grounds.  By the twelfth century, Venice and Genoa competed for domination over the Mediterranean and Adriatic waters that provided trade routes to the Far East.  This trend of extending land sovereignty into the oceans culminated in 1494 in the Treaty of Tordesillas, approved by Pope Alexander VI, in which Spain took control of navigation rights in the western part of the Mediterranean, the Gulf of Mexico, and the Pacific, and Portugal claimed navigational rights in the Atlantic south of Morocco and in the Indian Ocean.  The penalty for violating these exclusive navigational rights was excommunication from the church.

2.  Under the influence of the Renaissance and the Reformation, jurists began to challenge this papal bull, and in 1598, Gentili, a jurist in Italy, advanced the idea that a sovereign nation could treat waters adjacent to its coast as territorial sea, presumably for protection from attack and for prevention of piracy.  In Holland, Hugo Grotius, the parent of modern international maritime law, used reason and natural law to argue for the idea of the freedom of the seas beyond these territorial waters.  Eventually, only a narrow band of water within cannon shot of a coast (three nautical miles), called the territorial sea, was recognized as subject to coastal State sovereignty, and this concept endured until the middle of the twentieth century. 

Sources of International Law 

1.  While the maritime States preferred the freedom of the seas approach to ocean governance, the coastal States sought to expand their control of the ocean to gain exclusive rights to the natural resources off of their coast.  This conflict of use issue created a need for international law to balance the needs of the various States.  Because the subjects of international law are independent and equal States, the source of international law has been voluntary recognition and acceptance of the rules of international law.   The consent of nations is found in the Statute of the International Court of Justice.  Explicit consent is found in the treaties to which a State is a party.  Implicit consent is found in customary practices so regular and widespread that they have become legally binding.  Secondary sources of international law are the general principles of law recognized by civilized nations, judicial decisions, and the teachings of highly qualified international lawyers.   International law can only be created by the states, however general principles, judicial decisions, and teachings of international lawyers often informs and impacts changes in international law.

2.  Explicit consent in the form of international agreements establishes the rights and obligations recognized by those States.  Before they enter into force, treaties often require signatures as well as ratification by the parties.  In the case of multilateral treaties, ratification by a prescribed minimum number of States is required. 

3.  Implicit consent, in customary law, requires proof of two elements.  The first is a general and consistent practice adopted by the States, but it need not be adopted by all the states to establish it as a source of international law.  The nations most directly affected by the law will be given special weight, and in the case of the law of the sea, the coastal states will have the most impact on the law.  The second element is the conviction by States that the practice is one followed by the same legal obligation.  An example of customary law is the recognition of the three mile territorial seas.

Codification of the Law of the Sea

1.  Efforts to codify the rules of customary international law began in the 1870s.  The first of these was the 1884 Paris Convention on the Protection of Submarine Cables.  The Constantinople Convention of 1888, signed by nine nations, guaranteed free passage through the Suez Canal in time of peace and of war.  With the three-mile territorial seas, straits were “owned” by the countries nearest the straits, and the passage could be closed making ocean commerce and movement of military ships impossible.  By the time of World War II, thirty-six conventions or protocols governing the law of the sea were negotiated. 

2.  During the period of time between the two World Wars, the League of Nations led the efforts to codify general principles of peacetime maritime law as well as general international law.  In the first conference, called the Progressive Codification of International Law, which met at The Hague in 1930, delegates from forty-eight nations met for one month.  The conference did not produce a treaty, but the participating nations did prepare a draft on “The Legal Status of the Territorial Sea,” which heavily influenced the subsequent work of the First United Nations Conference on the Law of the Sea after the Second World War.  The draft recognized the right of innocent passage of merchant vessels through a coastal State’s territorial sea, provided there were no acts against the security, public policy, or fiscal interests of the State.  They also argued that foreign warships would be able to use the territorial sea without previous authorization or notification, but submarines needed to navigate on the surface.  However, the width of the territorial sea remained an unresolved issue, even within the United States.  The U.S. is both a maritime power wanting open seas and a coastal State wanting exclusive control of the resources off the coast with interests in the U.S. advocating both positions. 

3.  In the decade after World War II, over two dozen international agreements were concluded by multilateral negotiations in areas such as fishery conservation and management, sea person’s welfare, sanitary regulations, stowaways, and oil pollution at sea.  During this time, global interest in the oceans increased with the growing need for food and energy resources from the sea and the increasing concern over marine pollution as evidence mounted that the ocean environment was being degraded.  At the Third United Nations Conference on the Law of the Sea, interest increased about the proposition that the ocean’s resources were the common heritage of all humankind; that no specific nation could claim exclusive jurisdiction over the oceans.  However, the coastal nations still demanded increased control over coastal resources, and the pressure for a twelve nautical mile territorial sea was overwhelming.  This third United Nations conference did produce a treaty that included a twelve-mile territorial sea and an additional 200 mile exclusive economic zone (EEZ) with sovereign rights with respect to living and nonliving resources.  Although the United States never signed the treaty, they have recognized the parts of the treaty that established the territorial sea and the exclusive economic zone which established the regions as international law of the sea.  These customary practices have become legally binding on all nations. 

© Karen Donahue 2017