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THE DEVELOPMENT OF THE LAW OF THE SEA WITH PARTICULAR REFERENCE TO THE AUTONOMOUS TERRITORIES*

Bo Johnson Theutenberg

1. THE REVOLUTION OF THE LA W OF THE SEA 1.1. Introduction and historic perspectives "... ac Apostolicae potestatis plenitude, omnes insulas, et terras firmas inventas, et inveniendas, detectas et detegendas ... auctoritate omnipotentis Dei nobis i B. Petro concessa, ad vicarius Jesu Christi ... tenore praesentium donamus, concedimus, assignamus" . When Pope Alexander VI (Borgia) affixed his great papal seal to a bull containing these words at the Vatican in Rome on 4 May 1493, it can hardly have occurred to him that in doing so he might have been sowing the seeds of an international crisis 500 years later - a crisis which at first puzzled the world at large but whose roots go a long way back into history: in other words, the Falklands crisis, which also erupted into open hostilities. Pope Alexander Borgia, serenely partitioning the world between Spain and Portugal in his papal bulls at the end of the 15th century, was living in an age when it was considered natural for one or a few powers to have complete control of the oceans. At that time the great oceans belonged to one or few of the major world powers. The freedom of the seas was unheard of then. For centuries the crown of Norway and Denmark, for example, had laid claim to sovereignty over the vast Mare Septentrionale, i. e. the Arctic. During the first half of the 17th century, Great Britain claimed supremacy over a large sea area, extending to the Arctic Ocean in the North, the so-called Oceanus Britannicus. During the period from the 15th to the 18th centuries, Denmark - later together with Sweden - exercised what has been termed the Dominium maris Baltici, - supremacy over the Baltic Sea. The Pope decreed in 1493 that all new discoveries were to be divided between Spain and Portugal. He drew his famous line of demarcation 100 leagues west of the Azores. All land west of this line was to go to Spain and all land east of it to Portugal. A great monopoly was established. The location of the line was subsequently shifted on 7 June 1494 through the Treaty of Tordesilllas, when the boundary between the Spanish and Portugese spheres was placed 370 leagues west the Cap Verde islands, which corresponds in large with longitude 49 °W which cuts off east Brazil from the rest of the South American continent. No other powers were allowed to voyage to the newly discovered areas and trade there. The principle of the closed sea - mare clausum - now prevailed. There are many examples of this kind. But not for hundreds of years have the fundamental legal principles of the law of the sea been associated with this kind of unlimited national supremacy. With Hugo Grotius's work Mare liberum in 1609, the principle of the freedom of the . seas was founded - a principle to which states have professed allegiance ever since. Grotius

* Referenceis made to the author's article "The Arctic Law of the Sea" in the journal, vol. 52, Fasc. - - 1-2, 1983,which includes useful illustrations to the issues dealt with in the present article. 66

objected to the prevailing inclination of leading powers to control and monopolize the oceans. He argued that the seas were there for everyone - they were free. The jurisdiction of each coastal state should be confined to a narrow coastal strip, i. e. its territorial waters. The sea as being free for everyone, an area of usus publicus, where the states had their traditional rights to sail, fish etc., is a principle which was codified in the 1958 Geneva Convention on the High Seas. Our days have witnessed something like a revolution in the law of the sea. In fact, history has almost come full circle. Areas that for centuries have been part of the high seas, to which all have had access and in which all could ply their trade e. g. in form of fishing, have now in one form or another become part of the sovereignty zones of the coastal states. Principles other than the freedom of the seas today dominate large sea areas. On 1 January 1977 the North Sea, for example, ceased to be a high sea as far as fishing and other economic exploitation was concerned. The European Communities established their fishing zones in these waters, covering the entire North Sea. Their respective continental shelves follow the same borders. The past decade has seen a rapid development in the law of the sea. The Society of states, and the United Nations, have tried to arrive at a generally acceptable legal system for the seas and the seabed. These efforts have been made at the Third United Nations Conference on the Law of the Sea (UNCLOS), which concluded on 30 April 1982 by adopting a new Law of the Sea Convention. These new rules will, hope- fully, be applied by the states. However, this is today not altogether certain. Should these hopes not be fulfilled, the development towards even broader "sovereingty zones" will most surely continue. The principle that a state should have a right to establish broad sovereignty zones of varying types beyond its own traditional territorial waters - previously fairly narrow - is in fact rooted in a non-occidental tradition. The establishment by President Truman in 1945 of the idea of continental shelf jurisdiction - i. e. the idea of a coastal state also having sovereignty over the seabed area outside its territorial waters as far as resources were con- cerned - set off one of the greatest revolutions of international law since the launching of Hugo Grotius' famous theory of the freedom of the seas in the early 17th century. The Truman doctrine declared that a coastal state had sovereign rights to explore and exploit the shelf area adjacent to the coast of that state - the area descending from the land mass down the slope to the depths of the sea. The concept "continental shelf" emerged and was legally defined in Geneva through the Convention on the Continental Shelf, adopted in 1958. The principles laid down in this convention have come to be generally applied by states. Unfortunately, it must be admitted that one of the criteria governing the extent of the continental shelf was elastic enough to give rise to the mechanism of creeping juris- diction. In other words, the control and jurisdiction of states is creeping farther out into what were previously the high seas.

' 1.2. The new Arctic maritime zones . Where the Arctic is concerned, it is thus interesting to note that the really deep areas are concentrated towards the American, Atlantic part of the ocean. On the Eurasian, or Soviet side there is an extended continental shelf, extending some 600 kilometres out from the coast in places. The depths of the "Soviet part" are limited. This, of course, is an advantage in terms of exploitation but a military/strategic disadvantage, since submarine