The Law of the Sea: An Historical Analysis of the 1982 Treaty and Its Rejection by the United States

The Law of the Sea: An Historical Analysis of the 1982 Treaty and Its Rejection by the United States

The Law of the Sea: An Historical Analysis of the 1982 Treaty and Its Rejection by the United States

The Law of the Sea: An Historical Analysis of the 1982 Treaty and Its Rejection by the United States

Excerpt

Historically, the law of the sea has been established mainly by custom. There have traditionally been three basic types of territorial regime under customary international law: national sovereignty, res nullius, and res communis. Sovereignty has been described as "legal shorthand for legal personality of a certain kind, that of statehood." A res nullius regime is characterized by a lack of any sovereignty or ownership interest in an area or movable object which nevertheless remains available for appropriation by a claimant; res communis, in contrast, designates community ownership -- an area or movable object which may not be appropriated nor used in a manner which impairs its use by others, except perhaps through general acquiescence. "A true res communis cannot lawfully be reduced into sovereignty at all, whereas a res nullius can: but unless and until a res nullius is so reduced, it is open to common use and exploitation of the nationals and undertakings of all countries."

Maritime trade made an important contribution to commerce among ancient civilizations, some of which sought to control portions of the Mediterranean Sea through the exercise of naval power. There is little evidence that the exercise of such control constituted application of a recognized legal regime, however; whereas classical Roman jurisprudence specifically applied the res communis doctrine to the sea and the air. The nature of the governing regime again became unclear with the assertion of exclusive maritime claims in the Middle Ages, although much commercial navigation was subject to maritime codes which had evolved among private traders since ancient times. In 1493 Spain and Portugal divided most of the world's oceans between themselves, claiming exclusive navigation rights in a joint act of appropriation ratified by Pope Alexander VI and confirmed the following year in the Treaty of Tordesillas. This "mare clausum" doctrine was soon challenged by emerging maritime states -- particularly France, England, and the Netherlands -- and the defeat of the . . .

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