• The International Law Journal Editorial Board

The Law of The Sea

Aggiornato il: 16 nov 2020

When it is up on International Law, the jurisdiction on overseas plays a major role in transnational disputes

Historically interests on sea has been centralized between territorial sea and high sea. Over the years the concept of sovereignty on seas has deeply changed counting for the very first time on different zones unavoidably increasing jurisdiction problems.

In consequence of this, the approach used by International Law academics on this matter has shifted from a territorial vision of sovereignty to a brand new conception specifically named ‘Maritime Law’.

One of the main problem academics needed to face was the subjection of the seas on an exclusive sovereignty of a single state. Indeed it frequently occurs that the waters of the seas bath different states making crucial to divide the sea in various portion for any state. Logically the system used is the one to attribute the dominion of the sea to the region which is bathed by those waters with a parallelism with what happens on Air Space. However, if it solves easily the problem for the so called “Territorial Sea”, the dilemma for the “Open Sea” remains.

The idea of ​​attributing control of the open sea to the nation that holds a significant economic and political interest in this area is generally accepted by doctrine. With the due observation that these areas are purely transitional and non-stationary areas, it is peaceful to say that such visions present in the term 'interest' a significant discriminant with respect to territorial sovereignty, in which instead military supremacy has historically demonstrated to be the most incisive variable.

As regards specifically the legal instrument that international law uses to determine maritime jurisdiction, that is the parcelling out of the sea in different areas that can be summarized in coastal and non-coastal areas. Obviously, the control of the coastal areas, as has already been said, is up to the areas bathed by the waters to which is added an extension for each land emerged, albeit infinitesimally small, which is connected to any land jurisdiction.

An important aspect that must be underlined is that maritime borders, even if in this case costal, are difficult or better impossible to trace as it happens for land areas. For years, international doctrine has sought an answer to this problem. This aspect is of particular relevance in relation to the study of international law and compared from a temporal point of view, and if it is true that for years, maritime traffic, both economic and military, has never been such as to intervene, for years now the mental abstraction of drawing imaginary maritime boundaries as an exemption from terrestrial ones is now obsolete and no longer able to give legal protection to the unavoidably changed social conditions. The answer is to renounce the concept of boundary as it is commonly understood at the terrestrial level, but a completely new concept characterized by labile boundaries, which can in part, and within certain distances, be overcome in the exercise of jurisdiction. The discussion, given the empirical novelty of the matter, leads us to a case-by-case analysis and the purposes that justify this, at the terrestrial level, an unjustified lack of well-defined limits in jurisdiction. But there is more, in that, the oxymoron that in fact defines jurisdiction in maritime law as characterized by a fluid limitation, leads the doctrine to force the strict terrestrial legal limits towards a further justification for an exception to the law on limits, whereby, at a temporal rather than geographical level, it is possible for maritime law to guarantee an implicit diplomatic guarantee for any vessel that intends to pursue someone in foreign waters if an infringement is previously suspected detectable by international law against domestic law.

The discipline of the seas that go by the name of 'high seas' or 'international waters' has remained almost unchanged over the years and to date governed by the 1982 Montego Bay convention. The discipline drafted in the convention recognizes in these waters an asset owned by everyone and nobody, this means that no state can be considered exclusive * owner as no one is excluded. To understand the reason why the law provided for such regulation, such as the school of law and economics *, we must take into consideration the economic focal point of view. In fact, the high sea, as part of the doctrine used to call it, is a marine belt further away from the exclusive economic zone, that is the last zone that a coastal nation can boast of being able to exploit exclusively from an economic point of view with all this which logically derives from this * (authorizations for trade, change of driver in particular situations). This aspect allows us to conclude that the maritime areas located beyond this area (which changes from place to place) have historically not shown to contain a particularly appreciable economic value. The routes of the ships would be inconvenient and those of the aircraft above them would be inevitable. So once again it is the economy that precedes the law leading to a legal abstraction by providing that the waters at a certain distance from the coast, variable but generally 200 nautical miles * (cites the convention) are international waters not subject to exclusive economic exploitation

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