Beyond Confrontation: International Law for the Post-Cold War Era

Bernard H. Oxman and Anatoly L. Kolodkin

Prior to the twentieth century, the last revolutionary change in the law of the sea occurred contemporaneously with the emergence of modern international law itself. The same Dutch scholar, Grotius, played a central role in both developments. The thesis of his classic treatise, Mare Liberum, while not immediately accepted in all quarters, ultimately prevailed over the pretensions of Portugal and Spain to extend their imperial domains to the oceans, and over more modest claims of others.

This ushered in a long period of relative stability in which it was generally accepted among the European powers that shaped modern international law that the sea was free and open to all, subject to control by the coastal state only in a narrow margin off its coast generally believed to be one marine league (three nautical miles). Upon independence, the United States accepted this principle.¹ Its neighbors in the Western Hemisphere followed suit. New uses of the sea for communications and similar purposes, such as submarine cables and pipelines, overflight, and submerged navigation, were absorbed into the principle of freedom of the seas.

The next revolution in the law of the sea occurred in the twentieth century, in particular in the period following the Second World War². In retrospect, it appears that the revolution had not yet run its course when the first attempt to stabilize the law of the sea by treaty was completed at

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