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. Inthe 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 ).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. The United Nations Convention on the Law of the Sea (‘UNCLOS’) arises because of the crisis of incompleteness, disorder, and unfairness experienced in the previous phase, Now, the configuration seems to be more coherent. The Convention is considered customary international law regarding the establishment of all maritime spaces –– except for some aspects of the Area.10 Thus, maritime spaces are no longer determined

7 See generally: H Grotius, The Free Sea, tr R Hakluyt (Liberty Fund, 2004). 8 It is well known that Grotius’ Mare Liberum was inspired in the Controversiarum illustrium aliarumque usus frequentium libri tres (1564) of Spanish Fernando Vazquez y Menchaca, approximately 50 years before, still inserted in controversies considered to be in the first phase, as proposed in this paper: Bederman (n 1) 366. 9 In studying the law of the sea in history, one necessarily returns to the concept of precedence to better understand the famous Battle of Books. This period was noted for the defence made by publicists for some specific states. Such a defence assumed the precedence –– or greater dignity –– of a particular state in relation to others, granting to the more dignified unit more rights, in the case of the law of the sea, jurisdiction over maritime spaces, under various forms and names. Precedence is incompatible with contemporary international law, based on the equality of states. 10 The exception of the Area much owes to the United States’ historical positioning, which has not ratified the Convention. However, it is argued that this persistent objection is not towards the whole regime. The general aspects of the seabed regime –– non-appropriation of the Area and its resources, the use of the Area only for peaceful purposes, among others –– may well be considered jus cogens, a norm against which there could not be a persistent objection. See H Tuerk, ‘The Common Heritage of Mankind after 50 years’ (2017) 57 Indian Journal of International Law 264. (2020) 5 Perth International Law Journal 45 Eduardo Cavacanti De Mello Filho by the international legal regime’s liberality, unilateral acts of the coastal state, and politics. The so-called Constitution of the Oceans is a new level of the rule of law not only in the law of the sea but in the law of nations as a whole. Notwithstanding the above, this system has been facing several challenges, not to the extent of the rising of a fourth phase, but in a way that understanding it has become an imperative. For instance, these challenges include gaps in the conventional system, its relations with other rules of international law, diverging interpretations, social inefficacy, and the alleged emergency of new rules of customary international law (‘CIL’) parallel –– and even contrary –– to the Convention. Hence, the fulcrum of this piece is to answer the following question: how can the study of the law of the sea in history, through the proposed three phases thesis, improve the understanding of this branch of international law and its elements on the present day? Given this introduction, the paper is thus structured. The second topic will address the first phase, from Antiquity to Grotius. The third topic is devoted to examining the second phase, from Grotius to Montego Bay. The fourth one focuses on the third phase, from Montego Bay onwards. The fifth and concluding one summarizes the main findings and highlights the practical learnings stemming from the three phases approach to the Law of the Sea in History. Besides the already mentioned methodological aspects, this work is based mainly on bibliographic, primary, and jurisprudential sources. The research method is predominantly inductive, as patterns are observed in order to characterize the phases. II THE FIRST PHASE: FROM ANTIQUITY TO GROTIUS The study of the law of the sea in antiquity, for this work, must be carefully delimited. Until the 1930s, international law was considered a fruit of modernity.11 Properly speaking, the legal order governing relations between sovereign states only comes into existence when the modern state comes into existence. Identifying the law of the sea elements12 in antiquity is, therefore, a much more arduous and subjective task than saying that an International Maritime Organization convention is about maritime law or an International Labor Organization convention, about labour law. The adopted methodological approach is inserted within maritime spaces and law of the sea. As previously mentioned, it aims to separate the sea as an object governed by law from any other manifestation under the mantle of the law. The sea has always been present in the ideas of a significant part of the most remarkable civilizations in history and one of its exciting aspects is that the sea is one, but each people see it differently. While the sea in the medieval West was already seen as the home of mythological monsters, holder of mysteries, in Polynesia, it resembled the rural, interior part of a country, connecting the cities –– islands, in this case. In the Pacific, there are thousands of islands. The sea was part of the natives’ home. While Vasco da Gama had the help of the Arab navigator Ibn Majid to cross the Indian Ocean to the Indies, James Cook had the indispensable help of Tupaia in the Pacific. The methods are different. A western sailor would not dare to sail the Red Sea once, always needing local experts. From sea to sea, everything changes: winds, instruments,

11 C F Amerasinghe, ‘The Historical Development of International Law - Universal Aspects’ (2001) 39(4) Archiv Des Völkerrechts 367. 12 The term element will be commonly used to refer to manifestations of international law or the law of the sea, which, as a rule, do not fit into asystem –– more sophisticated concerning the field in which such element is expressed. 46 (2020) 5 Perth International Law Journal Law of the Sea in History: A Study Departing From the Maritime Spaces cartography, geomorphology, etc.13 To designate a starting point –– when the first law of the sea elements are introduced –– is a complicated task. The perspective of Graf Vitzthum thereon seems decent and will be adopted.14 When referring to pre-classical antiquity –– Mesopotamian, Minoan, Egyptian civilizations, etc ––, he identifies two phenomena that help describe the scenario: the dominium de facto15 and the freedom of the seas. Freedom is deduced from the absence of a rule that indicated the contrary, à la Lotus,16 and from the logic of the recognition of the importance of free trade for all nations. On the subject of the dominium de facto, the following is Graf Vizthum’s interpretation. The Greek historian Thucydides reports the domain over a significant part of the Aegean Sea in the Minoan era, starting mainly from Crete. Maritime historian Lionel Casson points out that, under the government of the legendary King Minos, whose figure initially appears in Homeric Poems, Minoan fleets have successfully policed the Mediterranean for centuries.17 Of course, this presence at sea was not without reason. The driving force was the fight against piracy and similar activities. Graf Vitzhum speaks of dominium de facto, for it has not been proven, and is doubtful, that a political entity in antiquity would have considered the sea under its sovereignty (thalassocracy or mare clausum, made the necessary reservations) and esteemed the legitimacy of a de jure dominance. In other words, there are still properly no elements of the law of the sea, only preliminary law of the sea elements. A The First Elements of the Law of the Sea The 6th and 5th centuries BC are decisive for the emergence of elements of the law of the sea. At the beginning of the Republic of , in 508 BC, Romans and Carthaginians began a series of treaties, reported by Polybius.18 These treaties determined certain restrictions on Roman navigation with warships westwards certain points. With the Greek city-states, in the interwar period –– between the Persian and Peloponnesian Wars (5th century BC) –– there was a moment of Athenian maritime hegemony in the Aegean, mainly under the Pericles government, where the priority was to protect the seas from security threats to make trade flourish. Despite the titles that were given to Athens, of a true maritime , among others, the predominant position is that its activities, by themselves, did not lead to the development of the law of the sea, and could be compared to what happened in the pre-Classical period –– dominium de facto.19 In ancient Greece, real elements of the law of the sea appeared in the establishment of treaties between Athens and other city-states (between 429 and 404 BC, during the

13 John Mack, The Sea: A Cultural History (Reaktion Books, 2011) 91. 14 Vitzhum (n 6) 10-14. 15 The original expression used by Vitzhum is faktische Seeherrschaft: ibid 14. 16 Under the so-called Lotus principle or presumption, “restrictions on the independence of states cannot be presumed.” It is based on the most famous decision issued by the Permanent Court of International Justice, in the Lotus Case, between Turkey and : H Handeyside, ‘The Lotus Principle in ICJ Jurisprudence: Was the Ship Ever Afloat?’ (2007) 71 Michigan Journal of International Law 72. 17 L Casson, The Ancient Mariners (Princeton University Press, 1959) 29. 18 D Johnston, The Historical Foundations of World Order: The Tower and the Arena (Martinus Nijhoff Publishers, 2008) 212. 19 Vitzhum (n 6) 16-17. (2020) 5 Perth International Law Journal 47 Eduardo Cavacanti De Mello Filho Peloponnesian War, in Thucydides’ writings). In these, it was determined, for example, that a third party (without prior consultation of the treaty parties) was prohibited from navigating through their areas (of each city-state). What these zones would be is not easy to determine. However, it relates to the influence of the respective city-state on that space –– one must take care not to apply modern concepts to antiquity anachronistically. Moreover, it was also an established rule that a port could only have one foreign warship in its area at a time.20 However, after the Peloponnesian War and with the supervening of Macedonia, the scenario changed. In 338/337 B.C. under the reign of Philip II, there is what is considered the probable first positivization of the freedom of navigation: the League of Corinth (or Hellenic League), formed by all Greek city-states, except Sparta, aiming at the combat of the Persians. It determined that the league members would have Freedom of Navigation and that their ports would be inviolable.21 Closing the part preceding the and the Roman apogee, some reservations must be made. There were already rules governing aspects of maritime law, for instance, in the Hamurabi and Manu Codes.22 B. Between Rhodes and Rome Following the chronological line, one arrives at the Roman contributions, among which the concept of mare nostrum and the Rhodian Law stand out. With the death of Alexander the Great (323 B.C.), attention turned to Rhodes, a land of merchants and unique naval efficiency at the time: formerly part of the Persian Empire, it had been restored as a democracy by Alexander the Great and subsequently transformed into an imperial city under his rule. When he died, the citizens declared their full independence. During the Hellenistic era, this small Aegean island became the main hub for shipments from , Arabia, Egypt, Greece, , and North . At the confluence of strategic and political commercial interests, equally accessible to the major powers as to the secondary powers of three continents, the island-state of Rhodes maintained a crucial position in the Hellenistic diplomatic system.23 Thus, taking into account the presence of several systems (great like the Persian, the Greek city-states, the Indian states, and Rome) that were interconnected and had force as the primary law, the Rhodians soon realized that their independence was inevitably linked to the freedom of the seas in the eastern Mediterranean and that international trade could only be free to the extent that the sea was kept free from both piracy and the strength of the great powers. For example, it is reported that when Byzantium began collecting taxes for passage through the Bosphorus Strait, which leads to the Black Sea, Rhodes declared war (220 BC), forcing the powerful adversary to abandon its plans that threatened freedom of navigation.24 Hence, encharged with this particular duty –– favouring freedom of navigation –– Rhodes enjoyed good relations with most peoples. The Law of Rhodes, which also had maritime law rules, clearly emphasized the freedom of navigation and

20 Ibid. 21 Ibid. 22 T V Zanella, Manual de Direito do Mar (D’Plácido, 2017) 44. 23 P B Casella, Direito Internacional no Tempo Medieval e Moderno até Vitória (Atlas, 2012) 458. 24 Johnston (n 18) 220. 48 (2020) 5 Perth International Law Journal Law of the Sea in History: A Study Departing From the Maritime Spaces the fight against piracy. The emphasis on it as a Roman contribution is given by the importance that the Rhodian Law acquired in the (and in subsequent European history). Cicero had praised the Rhodian Law for its humanity. Emperor Augustus adopted it for the empire. Marcus Aurelius reaffirmed its sovereignty, and Antoninus Pious trimmed the edges, stating that he was the lord of the world, but that the Rhodian Law was the lord of the sea. It was then up to the Law of Rhodes to answer questions about navigation unless it went against Roman law.25 Justinian’s corpus juris civilis incorporated the Lex Rhodia. After this consolidation, it became popular in the Middle East and the West, becoming law in many localities from the 10th to the 15th century. It was fundamental for maritime commerce in the Middle Ages. It inspired, directly or indirectly, important nautical statutes of the Medieval Period, such as the Constitutum Usus of Pisa, the Rôles d’Oléron of Gascony, the Statutes of Ragusa, as well as the practices of Venice, Genoa and Amalfi, the laws of Wisby and the ordinances of the Hanseatic League.26 During the Roman Empire, naturali iure communia omnium, maris communem usum omnibus hominibus and res communi omnium usus were expressions that defined the Mediterranean. They mean that the sea is a thing and of common use. Mare nostrum does not mean mare clausum. It is common to see learned authors using the term to describe the Mediterranean as under Roman sovereignty.27 In 1932, Viktor Burr demonstrated that the term was used primarily for geographical representation and that Rome had never made a claim on the Mediterranean of such a dimension.28 In Graf Vitzhum’s view, Rome was more a curator of the Mediterranean than a sovereign.29 The Rhodian influence is evident! The power not only of Rome but of all those who assume this role is tremendous. Furthermore, one does not need to look at the examples of Minos, Athens, or Rhodes, may simply look at the present as well: the United States works arguably better as a maintainer of the rule of law at sea than the UN itself. As aforesaid, Roman law had a major influence on the European law of the sea in the Middle Ages. At the same time, progress and development were made, trade was intensified. The panorama with the Italian city-states and kingdoms across Europe is the context. The claims for sovereignty over portions of the sea must now be highlighted. Denmark was collecting taxes for access to the Baltic Sea and was trying to expand its sovereignty over this sea. England projected its strength over the Narrows Seas, to its coast, also to fight piracy. But probably the most famous claims are those of Venice over the Adriatic Sea and of Genoa over the Ligurian Sea.30 Venetian claims were recognized by the Papacy and the , whereas the Genovese ones were ensured via treaties with neighbouring cities. 31 As Zanella points out, quoting Gidel, “several political units that emerged in its

25 D C Gofas, ‘The Lex Rhodia de Iactu’ in M H Nordquist and J N Moore (eds), Entry into force of the law of the Sea Convention (Brill-Nijhoff, 1995) 30. 26 Casella (n 23) 463. 27 See Bederman (n 1) 363. 28 V Burr, Nostrum Mare: Ursprung und Geschichte der Namen des Mittelmeeres und seiner Teilmeere im Altertum (Kohlhammer, 1932) 128. 29 Vitzhum (n 6) 23. 30 Ibid 29. 31 Bederman (n 1) 364-365. (2020) 5 Perth International Law Journal 49 Eduardo Cavacanti De Mello Filho place [from the Roman Empire] quickly claimed their rights to Mediterranean waters.”32 These closed seas had the scopes of protection against piracy, prevention from diseases, and levying taxes for navigation and exploitation of living resources, etc. Marotta Rangel argues that the distinction between districtus and pelagus, between territorial waters and the high seas, is delineated between Italian cities and northern Europe.33 The first phase represents a development that includes: (i) dominium de facto, not restricted by a certain distance from the coast, but measured by the factual dominance of an area, usually under the direct influence of the relevant sovereign; (ii) rules governing navigation in certain areas; (iii) the freedom of the seas generally conceived and the fight against piracy; and (iv) claims from political units to areas of the sea in the Medieval pursuing special rights regarding taxation, fishing, security etc. These developments, especially the fourth one, constitute essential features of the second phase, consolidated with Grotius. III THE SECOND PHASE: FROM GROTIUS TO MONTEGO BAY Understanding the beginning of the second phase requires contextualization. The decline of the Italian city-states has witnessed the consolidation of national kingdoms. The so-called began in 1415 with the arrival of the Portuguese in Ceuta. It began to give global features to the law of the sea, no longer restricted to Europe. With the discovery of America and the road to the Indies, and were in advantage. Tanaka teaches that they were granted a monopoly on trade in the New World by the papal bull Inter Caetera.34 In the same vein, the Iberian countries argued that, as they had discovered the routes referred to in the Great Navigations, they should enjoy some sort of advantage over them, whether exclusivity or payment of taxes for their use, for instance. With this background, the discussion arose involving France, England, and the United Provinces, among other nations with participation in the maritime activity that did not agree with the exclusivity enjoyed by Spain and Portugal. Within this broader context, in February 1603, Jacob van Heemskerk (captain of one of the ships belonging to the Dutch East Company) captured Santa Catarina, a Portuguese vessel, on the strait of Malacca. At the Prize Court in Amsterdam, Grotius was the lawyer who defended the Dutch interests, which included, in this very specific case, freedom of navigation. A chapter of the defence (Mare liberum) was published anonymously in 1609. As a consequence, it was always referred to by Justo Serafim de Freitas as “the Incognito,” when he refuted, in defence of Portugal, the arguments of Grotius in his De Justo Imperio lusitanorum asiatico (On the just empire of the Portuguese in Asia, 1625).35 John Selden defended the possibility of the sea being appropriated by a nation, this time in favour of England, with his Mare Clausum (1635). England claimed an Oceanus Britannicus, involving fishing rights over the strips close to the British coast and the North Sea spaces. The so-called “Battle of the Books” arose: authors from various nations began to write works defending a given state’s right to a specific maritime space. For example,

32 Zanella (n 22) 51-52. 33 V M Rangel, ‘O Novo Direito do Mar e a América Latina’ (1979) Revista da Faculdade de Direito da Universidade de São Paulo 97. 34 Tanaka (n 3) 16-17. 35 Paulo B Casella, Direito Internacional no Tempo Antigo (Atlas, 2012) 107. 50 (2020) 5 Perth International Law Journal Law of the Sea in History: A Study Departing From the Maritime Spaces Johan Isaaksz Pontanus defended the rights of navigation of Denmark and Norway’s crowns, against the thesis of the English precedence of Selden, and Pietro Battista Borgo affirmed the primacy of the rights of navigation of Genoa over the adjacent sea. Contrary to the latter, Theodorus Johannes “Dirk” Graswinckel, cousin and pupil of Grotius, defended the mare liberum. He was contested by Selden (1653). English precedence was also defended by authors such as John Borough (1651) and William Welwood (1653). Graswinckel still answered in 1653. Numerous other authors have written in defence of the precedence of some specific state. In this specific context, it should be noted that Grotius was not a revolutionary (he was not in modernity, much less in history, as already seen). Vasquez y Menchaca and Francisco de Vitória, for example, had previously defended freedom of navigation. The latter, with his famous jus communicationis.36 This myriad of works on precedence only reveals the status of inequality at the time. Once again force dominated but under the mantle of international law’s legitimacy. Meanwhile, states’ practice was the result of the observation that trade and navigation are better governed by the freedom of the seas, which was gradually consolidated.37 Its apex was reached in the 19th century, with the Pax Britannica, which ensured the continuing political, economic, and military influence of maritime powers.38 Grotius is considered the starting point of the second phase, because, besides being the prominent name supporting mare liberum, he admitted, in 1625, in his De jure belli ac pacis, the possibility of exercising jurisdiction over a part of the sea, within the general rule of freedom of the seas.39 That is the law of the sea in the second phase. The legal definition and the extension of this maritime space under the sovereignty –– or jurisdiction or ownership –– of a state (usually, territorial sea) were dubious and remained so until 10 December 1982, when the Montego Bay Convention opened for signature. Starting from this fundamental basis, one may ask: what were then the criteria for establishing a maritime space? First, the creation of a maritime space presupposes a functionality: The state has an interest, which in the 17th and 18th centuries could be related to security, fishing, neutrality, tax collection, etc. To maintain a maritime space is not mere liberality: it requires effort, which is a condition for the characterization of the maritime space as such. Cornelius van Bynkershoek, in his De dominio maris dissertatio (1702), states “potestatem terrae finiri ubi finitur armorum 40 vis.” That is, the power of the land (of the state) extends (towards the sea) to the limit of the power of arms. Connected to this assertion is the second requirement: effective control by the coastal state over the maritime space –– with the appropriate proportions because it is at sea. In the 20th

36 A member of the famous Spanish School of International Law, Vitoria is considered one of the founders of modern international law. His two most important works for international law are De Indis and De Potestate Civili. In the following Portuguese translation of these works, Judge Cançado Trindade wrote a very thoughtful preface: F Vitoria, Relectiones: sobre os índios e sobre o poder civil, J C B Aleixo tr (Editora Universidade de Brasília, 2016). 37 P B Casella, Direito Internacional no Tempo Moderno de Súarez a Grócio (Atlas, 2014) 532-533. 38 A Lambert, ‘The Pax Britannica and the Advent of Globalization’, in D Moran and J A Russel (eds) Maritime Strategy and Global Order: Markets, Resources and Security (Georgetown University Press, 2016) 4. 39 Grotius makes a clear distinction between property and possession of the jurisdiction. Only the latter is admissible but still limited –– he cites specifically the right of passage enjoyed by unarmed and inoffensive ships. See Hugo Grotius, The Rights of War and Peace Book II, ed Richard Tuck (Liberty Fund, 2005) 466. 40 C V Bynkershoek, De Dominio Maris Dissertatio (Oxford University Press, 1923) 124. (2020) 5 Perth International Law Journal 51 Eduardo Cavacanti De Mello Filho century, Cecil Hurst still maintained this paradigm.41 The third requirement is attributed to an observation by Gidel when referring to the claims on the continental shelf: the state that claims needs recognition from others, whether explicit or tacit.42 Ergo, the formation of maritime spaces in the second phase can be summarized in these three points: functionality and interest of the coastal state, effective control, and recognition by others. As has already been shown, the practice of claiming sovereignty over an adjacent area is not a luxury of European modernity, and cataloguing it in its entirety, as well as being unproductive, would be impossible using the sources available. The exhibition continues to better characterize the law of the sea in the period –– rather than any pretension to exhaust the relevant historical data. In 1954, H. S. K. Kent published an article in the American Journal of International Law entitled The Historical Origins of the Three-mile Limit. There, he made an interesting criticism: the history surrounding the three nautical miles rule and the cannon shot rule is not so simple. The narrative is usually that, as Bynkershoek states, the power of the lands extends to the limit of the power of guns. Therefore, the cannon shot range (power of guns) determines this limit, which turned out to be three nautical miles (‘nm’). That is a gross simplification, which, ignores more than three centuries of history. Kent first points out that the cannon shot rule was associated with Mediterranean countries and the Netherlands. In contrast, Scandinavia (Denmark-Norway and Sweden) was associated with an exact length, more famous for being four nm.43 History is revealing and justifies this note. The author proposes that the first mention to the cannon shot rule took place in 1610, made by the Dutch in a dispute concerning fishing activities with the British. In 1598, the Kingdom of Denmark (at the time, it included current Denmark, Norway, Iceland, the Faroe Islands and, later, Greenland) established a lane adjacent to the coast of Iceland of two leagues under its sovereignty. The “Scandinavian league” had approximately four nm.44 Danish strategy of reducing previous claims, from dominium maris over a significant part of the North Sea to adjacent lanes would make sense from Bynkershoek’s point of view more than 100 years later. Denmark would not be able to police the whole region or convince the powers of its claims.45 The length of the lane adjacent to the Icelandic coast varied up to eight leagues (until the 19th century). The same practice was adopted in other regions, such as the Norwegian coast and the Faroe Islands. In fact, for the latter, the criterion was the visibility of the vessel from the coast, which, for Denmark, translated into four leagues. There was even an incident involving Scottish fishers that resulted in contact between the Danish and Scottish kings, the latter having prohibited their nationals from fishing in the area under Danish control.46

41 V M Rangel, ‘O Novo Direito do Mar e a América Latina’ (1980) 75 Revista da Faculdade de Direito da Universidade de São Paulo 43. 42 Ibid. 43 H S K Kent, ‘The Historical Origins of the Three-Mile Limit’ (1954) 48(4) American Journal of International Law 537. 44 This calculation divides the degree of latitude by 15, resulting in a distance of 4 minutes. Every 4 minutes was equivalent to one league for Denmark at the time. The nautical mile (1852m) corresponds to the average length of one minute of latitude. 45 Kent (n 43) 538-539. 46 Ibid 539-540. 52 (2020) 5 Perth International Law Journal Law of the Sea in History: A Study Departing From the Maritime Spaces The practise had become commonplace and had also been used to safeguard neutrality, restrict whaling, and even navigation. Conflicts with the cannon shot rule did not take long to occur. The first significant case was when French corsairs could no longer capture British or Dutch vessels in Denmark’s areas –– a rule concerning Danish neutrality. The rationale of French interest lies in the fact that the Danish coast was much closer than the French to take the captured vessels. Thus, France argued that the distance of four leagues (16 miles) was unjustified and should be three nautical miles since it is the distance to which the cannon shot corresponds, which was the law in France. Denmark did not give in.47 The second situation involved the Netherlands and exclusive fishing rights in the Danish adjacent sea. The Netherlands also used the cannon shot rule. The settlement legally favoured the Danes –– but as a matter of “grace,” Dutch fisherpersons were allowed to conduct their work there.48 Typically, in the law of the sea textbooks, it is pointed out that by the middle of the 18th century, Scandinavian countries began to claim four nm territorial waters.49 The explanation for this reduction (from four to one league) has initial grounds in 1743 when the governor of Finnmark (in northern Norway) reduced the adjacent strip of fishing exclusivity to one league, especially for Russian fishers.50 There were economic concerns: retaliation by Russia was feared, such as the closure of its border to trade and seasonal migration of the Lapps (Norwegian people). The neutrality band was also reduced to one league, most likely with economic objectives, after all, Danish merchants profited from captured vessels. As it was interested in the reduction and the local market, France did not object, contrarily to England, until the Seven Years War, when disrespecting neutrality could have much worse consequences. All territorial seas of the Kingdom of Denmark were unified in 1 league with a royal ordinance of 1836.51 In establishing its maritime space, Sweden, a French ally, followed the Danish standard, but with an extension of three nautical miles.52 For Kent, this exchange between Scandinavian and Mediterranean traditions represents the famous three nautical miles’ origin. Naturally, other experiences related to maritime spaces existed between the 17th and 19th centuries. However, the events addressed here are appropriate to represent the general behaviour of states at that time. What has been shown so far is how the law of the sea operated in its second phase, in which the three points initially proposed are essential: functionality and interests of the states; effective occupation –– in the appropriate proportions –– and recognition by other states. These factors were always accompanied by strong political and historical content. As it happened in general with the rest of international law, this model was transposed, to some extent, to the rest of the world. For this reason and because of the availability of sources, the historical approach is Eurocentric –– this does not belittle research investigating the expression of the law of the sea in other traditions.53 To conclude this topic, a remark backed by curiosities: the “drastic” changes in

47 Ibid 542. 48 Ibid 543-544. 49 Tanaka (n 3) 21; Churchill and Lowe (n 2) 65. 50 Royal Ordinance 1747 (Finnmark, Norway). 51 Kent (n 43) 545. 52 Ibid 550. 53 Probably, the most referenced work on a truly global and comprehensive history of the law of the sea is that of Ram Prakash Anand. See Anand (n 4). (2020) 5 Perth International Law Journal 53 Eduardo Cavacanti De Mello Filho the law of the sea –– the third phase –– in the 20th century did not come out of the blue. Here one may quote the consciousness of the finitude of the sea’s resources, the Truman Proclamation,54 Latin America and Africa’s movement for what would become the Exclusive Economic Zone,55 etc. Consider that, according to Grotius, the resources of the sea were inexhaustible. Wolff and Vattel shared the same opinion. The latter stated: mare vastum res usus inexhausti est. It was said that the sea is so vast that it is sufficient for all uses that all people can make, whether they want to fish or sail. Given the validity of this postulate, the freedom of the seas seems justified.56 When this point of view proved inadequate, there was consequently more marked changes in states’ positioning. In Latin America, already in the first half of the 19th century, Venezuelan lawyer Andrés Bello contested the inexhaustibility of the ocean and its resources. Abandoning this assumption, Bello considered the appropriation of a portion of the sea by the coastal states justifiable.57 Marotta Rangel also addresses the development of the new dimension of the law of the sea: The seabed is added to the surface and the water column. He quotes Valin’s (1760) comments to the Naval Ordinance of 1681 (France): the territorial sea would extend as far as the bottom could be touched beneath that sea. At the beginning of the 19th century, a particular problem, already mentioned by Vattel earlier, arose - that of the sedentary fisheries for oysters intended to produce pearls (on the continental shelf). The doctrine treated exclusivity as an exception, triggered once demonstrated that exploitation had been ongoing for a long time. In the 1839 Convention between France and Great Britain, for example, oyster capture’s exclusivity in the Granville Bay was determined for vessels from these states. 58 This new dimension of the law of the sea also became important for submarine cables and pipelines, lighthouses, etc. At the end of the 19th century, significant oil reserves began to be found on some countries’ continental shelves.59 It is noticeable that what marks the unsustainability of the second phase of the Law of the Sea is a scenario of disorder, in which each country claimed something different, with little systematicity.60 Several factors have influenced states to claim new maritime spaces, and there seems to be no end, until today, to the novelties.

54 The Truman Proclamation refers to the United States Presidential Proclamation (‘USPP’) No. 2667, made by President Harry Truman, stating that the US Government had jurisdiction over the natural resources in the continental shelf contiguous to the North-American territory. On the same day, the USPP No. 2668 was adopted. It concerned the creation of conservation zones, regarding marine living resources, in those areas of the high sea contiguous to the coasts of the United States. 55 See below (n 66). 56 Rangel (n 33) 105. 57 Ibid 106-107. 58 Rangel (n 41) 42-43. 59 Ibid 44-45. 60 “It may be mentioned, however, that, but for agreement on vague freedom of the seas, implying freedom of peaceful navigation with a few agreed “rules of the road,” which benefited all Europeans, there was little agreement on other rules.[…] Thus, it is important to note that, apart from a few general principles, much of the maritime law, as it developed in the 19th and the first half of the 20th centuries according to the chaotic play of selfish interests, was controversial, uncertain and in several respects nothing more than a panorama of conflicting rules.”: Anand (n 4) 229-230. 54 (2020) 5 Perth International Law Journal Law of the Sea in History: A Study Departing From the Maritime Spaces IV THE THIRD PHASE: THE CONTEMPORARY LAW OF THE SEA, POST-MONTEGO BAY In the second phase, the law of the sea proved to be a product of the practices of coastal states, almost always European, with powerful merchant and military fleets. Some of these practices have fallen into oblivion. Others have gained adherence and gradually become standards or customary international law. The crisis of the second phase was due to three factors: unfairness, disorder, and incompleteness. As Oppenheim reports, before the massive codification of international law and the emergence of international tribunals in the 20th century, the doctrine had the critical role of explaining custom.61 If one considers the law of the sea in a multilateral environment, still during the European Concert, there was the Paris Naval Declaration of 1856. However, scholars usually consider the 1930 League of Nations Codification Conference, in The Hague, to be the first attempt to codify the law of the sea, specifically on the breadth and legal nature of the territorial sea. It failed, given the multitude of positions.62 More than 20 years later, the Articles concerning the Law of the Sea prepared by the then newly created United Nations International Law Commission stood out. They greatly influenced the First Conference on the Law of the Sea and its resulting four 1958 Geneva Conventions on the territorial sea and contiguous zone; high seas; conservation of biological resources of the sea; and continental shelf.63 An optional protocol on dispute settlement was also concluded. Besides being extremely conservative and ignoring the wishes of developing states, the Geneva Conventions left two problems unsolved: the breadth of the territorial sea, and the limits of adjacent areas (fishing or contiguous). Such issues were entrusted to the Second Conference on the Law of the Sea in 1960, which also had extremely modest results (two resolutions).64 As it will remain clear, the system was unfair. The establishment of the continental shelf’s breadth in the 1958 Convention on the Continental Shelf, Art. 1, is a symbolic example thereof: the continental shelf extends to a depth of 200m or to where the depth of the superjacent waters admits the exploitation of natural resources.65 The second alternative of this criterion favoured, above all, the more developed nations. In fact, with undefined and wide freedom of the seas, technological advances allowed vessels from developed nations to sail or fish anywhere on the globe. Developing states, many of them newly independent, wanted to benefit from the certainty that their

61 L Oppenheim, ‘The Science of International Law: its Task and Method’ (1908) 2(2) American Journal of International Law 315. 62 “At the final meeting of its Territorial Waters Committee, twenty states sought territorial seas of three miles, twelve sought six miles, and the four Scandinavian states sought recognition of their own historic four- mile claim; of these states, several wanted the right to claim contiguous zones beyond the territorial sea. No general agreement was reached.”: Churchill and Lowe (n 2) 66. 63 United Nations Convention on the Territorial Sea and the Contiguous Zone, open for signature 29th April 1958, 516 UNTS 205 (entered into force 10th September 1964); United Nations Convention on the High Seas, open for signature 29th April 1958, 450 UNTS 11 (entered into force 30 September 1962); United Nations Convention on Fishing and Conservation of the Living Resources of the High Seas, open for signature 29th April 1958, 559 UNTS 285 (entered into force 20th March 1966); United Nations Convention on the Continental Shelf, open for signature 24th April 1958, 499 UNTS 311 (entered into force 10th June 1964). 64 A P da Silva, O Brasil e o Direito Internacional do Mar Contemporâneo: Novas Oportunidades e Desafios (Almedina, 2015) 38-39. 65 United Nations Convention on the Continental Shelf, open for signature 29 April 1958, 499 UNTS 311 (entered into force 10th June 1964) art 1. (2020) 5 Perth International Law Journal 55 Eduardo Cavacanti De Mello Filho socioeconomic, military, and technological limitations would not hinder the enjoyment of their rights at sea.66 For this reason, Latin American –– and, later, African –– claims to 200nm maritime spaces, named in different manners (territorial sea, epicontinental sea, patrimonial sea, etc), from the 1940s to the 1970s, played an important role in the development of the law of the sea.67 The existence of the Exclusive Economic Zone is, to a large extent, due to these so-called “territorialist” countries. This was the first point of crisis: the unfairness of a legal regime that privileged maritime powers. The ultimate attempt to codify the law of the sea (Third Conference on the Law of the Sea) dealt not only with the system’s unfairness but also with a state of disorder of the law of the sea in its classical expression, the second phase. According to Tuerk, “the existing legal order of the seas already had begun to collapse”.68 In the same vein, the following are interesting words of the Canadian representative at the Conference, Alan Beesley: I want to begin by recalling that when the conference began, the law of the sea was in a state of disorder bordering on chaos. I am thinking more of 1967 than 1973, but there had not been much improvement in the meantime. There were conflicting claims on the breadth of the territorial sea, the nature and extent of coastal jurisdiction over fisheries, the regime for marine scientific research, coastal state rights and obligations concerning the preservation of the environment, disputes as to the outer edge of the continental shelf, disagreements concerning the rule for boundary delimitation, and even whether or not there existed an international seabed beyond national jurisdiction.69 Similarly, Richard Young, in 1948, analyzing the Truman Proclamation and Latin- American states’ reaction to it, extending their own maritime spaces to 200nm, could not be more precise: The development of the continental shelf doctrine, as well as its possible over- development in some instances, is symptomatic of the widespread dissatisfaction with existing doctrines on maritime jurisdiction. The confused state of the subject, particularly concerning the marginal sea and to fisheries, has long been common knowledge, more especially since the discussions at the Hague Codification Conference of 1930. Some reconsideration in the light of modern conditions seems imperative, for the effectiveness of international law is not promoted by blind insistence upon antique rules. […] Many obstacles would vanish if the general principles applicable to the continental shelf were to be authoritatively laid down, and it is suggested that here may be a challenging subject for international legislation. 70 The Montego Bay Convention effectively represented an answer to this challenge –– and achieved, even more, regulating not only the general principles applicable to the continental shelf. The United Nations Convention on the Law of the Sea was seen as a means of subjectively and objectively universalizing the law of the sea. It sought subjective universality in an attempt to bind the most relevant subjects of international

66 Anand (n 4) 230-231. 67 See F V García-Amador, ‘The Latin American Contribution to the Development of the Law of the Sea’ (1974) 68(1) American Journal of International Law 33-50; F Thibaut, ‘L’Amérique Latine et l’évolution du droit international de la mer’ (1971) 75 Revue Générale de Droit International Publique 742-758. 68 Tuerk (n 10) 261. 69 A Beesley, ‘The Negotiating Strategy of UNCLOS III: Developing and Developed Countries as Partners - A Pattern for Future Multilateral International Conferences?’ (1983) 46(2) Law and Contemporary Problems 183. 70 R Young, ‘Recent Developments with Respect to the Continental Shelf’ (1948) 42(4) American Journal of International Law 857. 56 (2020) 5 Perth International Law Journal Law of the Sea in History: A Study Departing From the Maritime Spaces law: after a 10-year negotiation, many compromises and an implementation agreement in 1994,71 it has become widely accepted and with many corresponding customary norms.72 It sought objective universality by being a comprehensive text –– it is UN’s largest multilateral convention, with 320 articles and nine annexes.73 By excluding the possibility of making reservations74 –– a necessary element of the so-called package deal ––75 and providing for the compulsory settlement of disputes,76 the system also gained greater cohesion. The objective universality also aimed at tackling the third factor of the crisis: incompleteness, which was of no interest to key-groups. The landlocked states had a Convention on their rights in 1965, but without broad acceptance.77 With extensive demands that led to the creation of the EEZ, a new category of states emerged: the geographically disadvantaged.78 The archipelagic states, formed only by islands, strived for the regime of Part IV, UNCLOS, to be recognized.79 The maritime powers had several interests concerning navigation, but, for them, explaining the regime of international straits was more than necessary.80 The emergence of environmental law in the international arena also required a law of the sea different from the Geneva

71 Originally, Part XI of the Convention, on the seabed regime, was unacceptable for most of the developed nations, especially on obligations related to the transfer of marine technology and the funding of the Enterprise, an entity that would explore the Area and its resources and the Authority would equally distribute the respective results among states. The 1994 implementation agreement, aiming at the universalization of the Convention, profoundly changed Part XI: G R B Gallindo, ‘“Quem diz humanidade pretende enganar”?: Internacionalistas e os usos da noção de patrimônio comum da humanidade aplicada aos fundos marinhos (1967-1994)’ (PhD Thesis, University of Brasilia, 2006) 330. 72 J A Roach, ‘Today’s customary international law of the sea’ (2014) 45 Ocean Development and International Law 239. 73 The words of the Danish delegation in the Third Conference are more cogent and leave no doubt: “This is a unique event in the history of international law. The Convention on the Law of the Sea is the most comprehensive treaty ever drafted. It is a modern constitution for the uses of the ocean. It deals with all conceivable peaceful human activities in an area larger than 70 per cent of the surface of our globe. It has been worked out by the largest Conference in the history of the United Nations. The result embodied in the 320 articles and related-annexes and resolutions reflects a willingness to co-operate and to accept compromise solutions, expressed in two basic concepts: the consensus principle and the ‘package deal’ principle”: Verbatim records of meetings of the Plenary: Final Part of the Eleventh Session, UN Doc A/CONF.62/SR.191 (9th December 1989) 111. 74 United Nations Convention on the Law of the Sea, opened for signature 10th December 1982, UNTS 1833, 1834, 1835 (entered into force 16 November 1994) art 309. 75 H Caminos and M R Molitor, ‘Progressive Development of International Law and the Package Deal’ (1985) 79(4) American Journal of International Law 875-876. 76 States parties cannot make reservations to Part XV, on the settlement of disputes. Under Art. 287, they may choose one or more tribunals, among a list of four, to have jurisdiction over disputes involving them and the interpretation or application of the Convention. If no choice is made, they are deemed to have accepted arbitration. There are however exceptions (Art. 297) and optional exceptions (Art. 298) to the compulsory settlement of disputes.UNCLOS (n 5). 77 See K Uprety, ‘Landlocked States and Access to the Sea: An Evolutionary Study of a Contested Right’ (1994) 12(3) Dickinson Journal of International Law 401-496. 78 L Caflisch, ‘What is a Geographically Disadvantaged State?’ (1987) 18(6) Ocean Development and International Law 641. 79 F A Santos, ‘Beating the deadline: archipelagic state compliance under UNCLOS article 47’ (Master’s Dissertation, World Maritime University Dissertations, 2008) 165. 80 See J N Moore ‘The Regime of Straits and the Third United Nations Conference on the Law of the Sea’ (1980) 74(1) American Journal of International Law 77-121. (2020) 5 Perth International Law Journal 57 Eduardo Cavacanti De Mello Filho Conventions.81 Parallelly, there was a concern in the face of all this: to what extent can the novel system endure? In his famous speech on 1 November 1967, at the First Committee of the UN General Assembly, the Maltese diplomat Arvid Pardo warned that: The process has already started and will lead to a competitive scramble for sovereign rights over the land underlying the world’s seas and oceans, surpassing in magnitude and its implications last century’s colonial scramble for territory in Asia and Africa. [...] Between the very few dominant powers, suspicions and tensions would reach unprecedented levels. Traditional activities on the high seas would be curtailed and, at the same time, the world would face the growing danger of permanent damage to the marine environment.82 These concerns brought a new principle to the old freedom–sovereignty dichotomy: the common heritage of mankind (‘CHM’).83 It is legally applicable to the international seabed Area, but philosophically to the ocean as a whole.84 In concrete terms, it means that the Area and its resources (i) are not subject to appropriation or sovereignty, (ii) should be reserved for peaceful use, (iii) should be concertedly managed and exploited by all nations, and (iv) should have its benefits equally distributed.85 Another deep axiological development is the one concerning the material/solidary equality promoted by the UNCLOS.86 In summary, the Montego Bay Convention in achieving quasi-objective universality has dealt with the incompleteness of the system. The incompleteness is also a consequence of a legal order founded almost completely on customary international law and the practice of powerful nations or groups of states. This and the lack of widely accepted and objective definitions generated disorder, which was tackled by the Convention through quasi-objective and subjective universality: states may only claim up to the limits established in the Convention. In that regard, its norms are generally considered customary international law, but now with precise textual definitions. The Arbitral Tribunal in the South China Sea case famously asserted that “the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.”87 Finally, the Convention was a package deal founded upon

81 T V Zanela, Direito ambiental do mar: a prevenção da poluição por navios (Editora D’Plácido, 2019) 43. 82 A Pardo, The Common Heritage: Selected Papers on Oceans and World Order 1967-1975 (Malta University Press, 1975) 31. 83 The expression was coined decades ago and has acquired a well-determined meaning, reason for which it will be kept in this paper, but the author leaves the caveat regarding the justice of a more gender-inclusive language. 84 In that regard, the Draft Ocean Space Treaty, proposed by Malta in 1971, referred to the ocean space beyond national jurisdiction as the common heritage of mankind. Elizabeth Mann Borgese and Arvid Pardo, considered the mother and the father of the UNCLOS, envisaged a more encompassing application of the CHM principle: P Taylor, ‘The Common Heritage of Mankind: Expanding the Oceanic Circle’ in Boudreau et al (eds), The Future of Ocean Governance and Capacity Development: Essays in Honor of Elisabeth Mann Borgese (1918-2002) (Brill-Nijhoff, 2019) 142-144. 85 S Vöneky and A Höfelmeier, ‘Article 136’, in A Proelss (ed), United Nations Convention on the Law of the Sea: a Commentary (CH Beck – Hart -Nomos, 2017) 955. 86 The Third Conference happened right after the decolonization process from the 1950s until the 1970s. Furthermore, during the Conference, the New International Economic Order, aimed at reducing the inequalities between developed and developing states, was an important point of the UN’s Agenda. 87 The South China Sea Arbitration (Philippines v. China), (Award, Permanent Court of Arbitration, Case No 2013-19, 12 July 2016) [278]. 58 (2020) 5 Perth International Law Journal Law of the Sea in History: A Study Departing From the Maritime Spaces extensive negotiations and punctual compromises, in which the contentions of several stakeholders were considered, especially developing states, through the G77.88 It indeed represented a step towards a fairer oceanic legal order. Notwithstanding the above, in pursuing subjective universality –– and, therefore, order and stability –– the Convention had to be implemented in 1994. In pursuing completeness it had to be implemented in 199589 and there is an ongoing intergovernmental conference on biodiversity beyond national jurisdiction (BBNJ) that will probably end up in a new implementation agreement.90 All these initiatives represent a negotiated solution, taking into consideration the representativity of different interests, aiming at a fair solution. Beyond the conventional system, there is a wide array of more specific international, regional, and bilateral norms and actors which have their role recognized by the UNCLOS itself.91 On the other hand, they usually have a “without prejudice” clause referring to the Montego Bay Convention in a way that its material importance as the Constitution of the Oceans is reaffirmed.92 Ideally, the Montego Bay System is orderly, complete –– or capable of pursuing completeness ––, and, to a reasonable extent, fair. Only ideally. There are great controversies regarding the Convention that are not addressed via implementing agreements or amendments, which are bureaucratic and costing. Sometimes, they refer to the interpretation of a provision in the Convention and the exercise of jurisdiction by international tribunals may be clarifying in that respect, despite states’ ever heterogeneous practice. In other cases, however, states may develop a practice and an opinion directly contrary or at least parallel to the Convention. Affirming that there is a new customary norm, not provided for in the Convention, may be highly problematic: the fundamental norms of the contemporary law of the sea were agreed in a package deal, a compromised solution, based on the assertion that “nothing is agreed until everything is agreed”. This means that the rising of a new norm is usually not provided for in the initially balanced and negotiated solution. In that regard, Caminos and Molitor quoted Baxter: “The doctrine of integration and the interdependence of treaty provisions may also mean that a state was willing

88 The Third Conference counted on many groups of interests and official and non-official negotiations. Probably the most important group, the G77 was composed of approximately 120 developing states: da Silva (n 64) 59. 89 The reference made is to the UN Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. 90 See generally: A P Toledo and V Tassin, ‘Guide to the Navigation of Marine Biodiversity Beyond National Jurisdiction’ (Editora D’Plácido, 2017). 91 Several provisions in the UNCLOS (n 5) refer to “other rules of international law”, “generally accepted” standards, regulations, “competent organization” etc. The present author recognizes the paramount importance for the law of the sea of international organizations, especially the IMO and the Food and Agriculture Organization –– their normative production as well ––, regional and bilateral organizations and arrangements, mainly on fisheries, environmental protection, and maritime security. Nevertheless, the whole legal oceanic system, to a large extent, revolves around the UN Convention on the Law of the Sea. For a good account of the normative development of the Law of the Sea within the Convention and outside it, see generally: Harrison (n 6). 92 A good example is the Convention on the Protection of the Underwater Cultural Heritage, opened for signature 2nd November 2001, UNTS 2562 (entered into force on 2nd January 2009) art 3, which provides that “Nothing in this Convention shall prejudice the rights, jurisdiction and duties of states under international law, including the United Nations Convention on the Law of the Sea”. (2020) 5 Perth International Law Journal 59 Eduardo Cavacanti De Mello Filho to accept a given formula for one article only if it gained its way on another”.93 The learned authors adopted this perspective for the UNCLOS package deal: “If we now assume that the package deal has created some profound juridical implications for the traditional treaty-custom rules, it remains to be seen how these traditional rules have been specifically affected”.94 They were addressing the question whether the package deal innovations (progressive development, instead of codification of CIL) could give rise to new rules of CIL –– they did not address the matter of a new rule of CIL parallel or contrary to the Convention. Take, for instance, China’s position that offshore archipelagos may have archipelagic lines drawn around them.95 This contention, based on extensive state practice and possibly CIL parallel to the UNCLOS, is directly contrary to Art. 47, UNCLOS, according to which only a state constituted wholly by one or more archipelagos (can include other islands) may draw archipelagic lines. In 2016, the South China Sea Arbitral Tribunal had affirmed that “the subsequent practice of the state parties may bear on the interpretation of a treaty pursuant to Article 31 of the Vienna Convention, or a new rule of customary international law may emerge to modify the provisions of a treaty. International law is not static”.96 This is an obvious, but reassuring assertion. To further this argument, following Caminos and Molitor, it is reasonable to assume that the “profound juridical implications for the traditional treaty-custom rules” created by the package deal elevated the threshold for the identification of rules of CIL parallel to the Convention, regarding consistent, widespread, and representative state practice and states’ sense of legal right or obligation.97 As one may have already realized, describing the whole new law of the sea is a challenging task. The goal of this topic is simply to show how the law of the sea is generally structured in the third phase. In summary, the crisis of the second phase represented unfairness, disorder, and incompleteness. The history of the codification –– including attempts to codify –– of the law of the sea in the 20th century is centered on tackling that crisis. Finally, the herculean and formidable efforts involved in the Third Conference culminated in the UN Convention on the Law of the Sea, which represents a new level of rule of international law. It is almost entirely CIL, reaching the quasi- objective and subjective universality. However, as the reader may have realized, the law of the sea, throughout history, has become increasingly more complex. The Constitution of the Oceans is an important piece of a huge puzzle that involves several subjects, actors, instruments and sources. V CONCLUSION In Modern International Law, and classical treaties (doctrine), legal rhetoric was comparable to a history lesson — incredible in content and logic. Today, the science of international law is not very different, despite extensive codification. One must agree: history not only explains why a provision has been written in a certain way, but it also

93 R R Baxter, ‘Multilateral Treaties as Evidence of Customary International Law (1965-66) 41 British Yearbook of International Law 293; Caminos and Molitor (n 74) 883. 94 Caminos and Molitor (n 74) 884. 95 Chinese Society of International Law, ‘The South China Sea Arbitration Awards: A Critical Study’ (2018) 17(2) Chinese Journal of International Law 575. 96 South China Sea Arbitration (n 86) 274. 97 See Conclusions 8 and 9: United Nations International Law Commission, Draft conclusions on identification of customary international law, with commentaries, UN Doc A/73/10 (2018) 135-136. 60 (2020) 5 Perth International Law Journal Law of the Sea in History: A Study Departing From the Maritime Spaces helps to understand that provision on the present day. This work aims not to tell the history of the law of the sea, but to analyze the ontology of the law of the sea throughout its existence in time. Only rarely is the study of international law in history sterile. It is reasonable to conclude that, concerning the law of the sea, studying it in history is actually an indispensable condition for decently understanding it. Understanding what the law of the sea was and how it became what it is today is useful not only for its operation nowadays but also for promoting change. In this sense, the three phases approach highlights key-points throughout history that ultimately explain the contemporary law of the sea. The first phase reveals the raison d’être of the law of the sea, why it is present in some of the most ancient civilizations of . It witnessed the emergence of the first law of the sea elements and the consolidation of the freedom of the seas as a cornerstone. Moreover, it prepared the soil for the flourishing of the second phase, with the influence of Roman tradition and with the juxtaposition ofdistrictus and pelagus, which returns with the clash between mare liberum and mare clausum, a set of words used until today to explain the law of the sea. In the second phase, not only the classic freedom- sovereignty dichotomy was firmly established, but the uses and nations’ interests in the sea diversified, together with the technological developments that enabled the race to the seas and with the great increase of actors involved. Such a complex array of relations required a more sophisticated system. The system presented in the third phase is, to an important extent, based on the Montego Bay Convention. It aimed at a more orderly, fairer, and more complete legal oceanic regime. The changes, therefore, were both formal and material. The formal changes refer to the resilience of a quasi-subjectively and objectively universal regime and to aspects that directly or indirectly contribute to the three developments –– compulsory dispute settlement, implementation agreements, extensive and representative negotiation, etc. The material changes refer to an axiological development: It is not a purely interstate system, wholly based on reciprocity, guided by the freedom-sovereignty dichotomy. The protection of community interests is highlighted,98 especially via the CHM principle and environmental concerns throughout the Convention. The UNCLOS, as a living treaty, has evolved, at least interpretatively.99 Proposing an Ecosystem Approach, instead of a zonal management one,100 and asserting the secondary obligation of the flag state to ensure that vessels flying its flag are not engaged in illegal fishing in a foreign EEZ are good examples.101 It is also needless to mention that there is an exuberant evolution outside the Convention but within its scope.

98 See generally: S Villalpando, ‘The Legal Dimension of the International Community: How Community Interests are protected in International Law’ (2011) 21(2) European Journal of International Law 387-419; B Simma and A L Paulus, ‘The ‘International Community: Facing the Challenge of Globalization’ (1998) 9(2) European Journal of International Law 266-277. 99 A very interesting collective work has this general conclusion: J Barret and R Barnes, Law of the Sea: UNCLOS as a living treaty (British Institute of International Law, 2016). 100 See generally: V de Lucia, ‘The Ecosystem Approach and the negotiations towards a new Agreement on Marine Biodiversity in Areas beyond National Jurisdiction’ (2019) 2 Nordic Journal of Environmental Law 7-25. 101 This conclusion became famous through an Advisory Opinion delivered by the International Tribunal for the Law of the Sea, which recognized that such an obligation is not directly addressed in the Convention: Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission (Advisory Opinion) (International Tribunal for the Law of the Sea, Case No 21, 2 April 2015) [110]. (2020) 5 Perth International Law Journal 61 Eduardo Cavacanti De Mello Filho The three phases approach to the Law of the Sea in History highlights the keystones and linchpins that this branch of law has built throughout its history. The first phase reveals a rudimentary law of the sea –– and its essential elements. The second phase defined it in its modern expression, on what it is: a set of rules governing the legal regime of maritime spaces. The third and contemporary phase maintained the modern expression, but, faced with a high number of actors and an increased interest in the seas, in a collapsing system, inaugurated a complex regime with several intricacies. Understanding these intricacies, which give sustentation to the system, is indispensable.

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