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A Study Departing from the Maritime Spaces Law of the Sea in History: A Study Departing From the Maritime Spaces THE LAW OF THE SEA IN HISTORY: A STUDY DEPARTING FROM THE MARITIME SPACES EDUARDO CAVALCANTI DE MELLO FILHO* ABSTRACT Scholarly literature on the law of the sea has relied on historically constructed concepts. However, their meanings seem to be often misunderstood or unexplored. This reveals an imprecise comprehension of the subject as a product of successive historical events. Furthermore, the contemporary law of the sea is built upon a complex structure, surrounding the UN Convention on the Law of the Sea, heavily influenced by key historical factors. This paper proposes a three phases of the law of the sea in history approach aiming to understand how these successive events are intertwined and influence the law of the sea in the 21st century. The research method is predominantly inductive. It counts on the guidance mainly of bibliographic sources, referencing the lex lata and judicial precedents. The hypothesis proved consistent and highlights key-historical advances that ultimately explain essential aspects of the contemporary law of the sea. This contribution comprises a necessary understanding that may solidly underpin any more profound regard to the present-day law of the sea. I INTRODUCTION This paper is not about the history of the law of the sea;1 it is rather about the law of the sea in history. Although there are intersections between both perspectives, there is also an essential distinction: the latter aims at exploring the main characteristics of this branch of law at specific moments in history, not aiming at exhausting it, whereas the former focus on its linear developments. In the most propaedeutic studies on the law of the sea, it has been commonly explained as follows: the sea, as a result of a series of events and historical factors, has been divided into maritime spaces; and a different legal regime applies to each space.2 * LLB Student at the Federal University of Paraíba, Brazil, and Business Director at Candeeiro –– Legal Junior Enterprise. Former intern at the Brazilian Institute for the Law of the Sea and Researcher at the Centro de Estudos em Direito do Mar/Centre of Studies on the Law of the Sea “Vicente Marotta Rangel”, University of São Paulo (CEDMAR–USP). Contact: [email protected]. 1 Scholarly literature on the history the law of the sea is considerably extensive, albeit under a variety of perspectives. A generally decent and recent piece seems to be D J Bederman, ‘The Sea’ In B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law (Oxford University Press, 2012) 359-378. 2 G Jaenicke, ‘Law of the Sea’ in R Bernhardt (ed), Encyclopedia of Public International Law (North-Holland, 1989) 174; R R Churchill and A V Lowe, The Law of the Sea (Manchester University Press, 2nd ed, 1988) 1. (2020) 5 Perth International Law Journal 43 Eduardo Cavacanti De Mello Filho That is the contemporary law of the sea.3 It divides the sea and stipulates rights and duties in a relationship involving subjects of international law. It is also evident that the observation of maritime spaces presupposes the analysis of the respective legal regimes. Ergo, the study proposed here departs from the very essence of the law of the sea. Today, the great negligence towards the study focused on the law the sea in other moments of history –– essential for the contemporary ontological understanding of the subject –– is taken as a fundamental assumption. It is enough to notice: what does mare nostrum mean, and how does it differ from mare clausum and mare restrictum? What does the cannon shot rule really mean, and in what context is it mentioned? Fundamental questions that go beyond the barriers of the law of the sea, reaching other structures of ocean governance, have not been given the attention they deserve. Another assumption, methodological, is deductible from the title of this article. The law of the sea is presented in history through the lens of maritime spaces’ history. Such a methodology is convenient for two reasons. First, it emphatically distinguishes the law of the sea, as defined above, from shipping law.4 Second, it sheds light specifically on maritime spaces, mainly on how they have been formed and the general requirements for their formation across history. The proposed approach is that the law of the sea has developed remarkably different characteristics in terms of formation of maritime spaces –– and, therefore, changed as a system –– in three phases in history: Pre-Grotius; post-Grotius and pre-Montego Bay; and post-Montego Bay.5–6 A necessary caveat is that history is linear and continuous: It is a succession of facts in a logic of consequences. It would be very pretentious to choose historical landmarks (except in a religious context, where the life of Jesus Christ, for example, is undoubtedly a landmark), but such a simplification is made for didactic 3 Some authors also add a second function, “to protect the common interests of the international community as a whole, by focusing on the unity of the ocean”: Y Tanaka, The International Law of the Sea (Cambridge University Press, 2nd ed 2015) 37. 4 The vast majority of other works that touch on the history of the law of the sea do not separate, methodologically, the central object of maritime law, a branch of private law. That can be observed in references to the norms of the Code of Hammurabi, the Rhodian Law –– and Roman Law –– and medieval statutes. They will be mentioned briefly, with the relevant observations and reservations. See generally R P Anand, Origin and Development of the Law of the Sea (Brill | Nijhoff, 1982) 1–6. 5 These commonly known references in the law of the sea stand for Hugo Grotius and the United Nations Convention on the Law of the Sea, opened for signature on 10th December 1982, UNTS 1833, 1834, 1835 (entered into force on 16th November 1994) (‘Montego Bay Convention’ or ‘UNCLOS’). The former is considered one of the founders of modern international law. The latter has often been labelled as “the constitution of the oceans” –– attributed originally to Tommy Koh, one of the presidents of the Third Conference on the Law of the Sea. 6 These phases may sound familiar to readers with at least a little interest in the law of the sea. However, most approaches to the history of this branch of law usually borrow a timeline from general history (classical antiquity, Medieval Period, Modern Age etc), whereas the attempt in this paper is to scientifically determine the turning points of the law of the sea in history: Tanaka (n 3); Bederman (n 1); Anand (n 4); W G Vitzhum, Handbuch des Seerechts (CH Beck, 2006). Because of this approach, for instance, this contribution will not address exhaustively the codification attempts in the 20th century prior to the Law of the Sea Convention, a common feature of works on the history of the law of the sea. Although of paramount importance, extensively studying these codification efforts are of little help in achieving this paper’s intermediate goal: analyzing the essential aspects of the law of the sea in different times of history. The reader interested in a more thorough study on the history of the law of the sea codification can find valuable learnings in: T Treves, ‘Historical Development of the Law of the Sea’ in D Rothwell et al, The Oxford Handbook of the Law of the Sea (Oxford University Press, 2015) 1-23; J Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge University Press, 2011). 44 (2020) 5 Perth International Law Journal Law of the Sea in History: A Study Departing From the Maritime Spaces reasons. The consideration of a pre-Grotian period is fundamental for two main grounds: There was the law of the sea at the time before Grotius and the understanding of the second and third phases is significantly jeopardized without that of the first. In the development of the work, one can see, for example, the millenary influence of Rhodian and Roman laws on the law of the sea of the second and third phases. A large part of the references in modern international law, Grotius included, go back to Roman jurisconsults.7 The study of the first phase is again justified: The Dutchman did not invent the mare liberum to meet the interests of the United Provinces (later the Netherlands).8 The rationale was almost bimillennial. Moreover, the 17th century context was one of transition; it had remnants of the middle age –– the force was decisive ––, but it witnessed the development of international law as an instrument of legitimacy in an unprecedented way. To understand this transition, the previous historical context is indispensable. In the second phase, the law of the sea conquers its modern bases: Freedom of the seas (with legitimacy conferred by international law) as a general rule and sovereignty, rights of sovereignty or jurisdiction over specific maritime spaces as an exception. These are to be determined based on states’ interests concerning security, neutrality, and fishing, to name a few. To reach this configuration, Grotius’ work was essential and, hence, a milestone. What defines the second phase is the establishment of this basis and how spaces were determined: Unilaterally, following practices or not, by states. In such a context, the law of force still prevailed, except for the legitimacy of international law, which tried to justify precedence9 and unequal treaties, for example. The end of the second phase is crucial to the configuration of the third one in a way that there is no approach to the new law of the sea that disregards the period right before the Convention.
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