Glassner, Martin Ira

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Maryland Journal of International LawVolume 9 | Issue 2 Article 19The International Law of the Sea, by D. P.O'Connell, Edited by I. A. ShearerMartin Ira GlassnerFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mjilPart of the International Law CommonsThis Article is brought to you for free and open access by DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Journal ofInternational Law by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationMartin I. Glassner, The International Law of the Sea, by D. P. O'Connell, Edited by I. A. Shearer, 9 Md. J. Int'l L. 279 (1985).Available at: http://digitalcommons.law.umaryland.edu/mjil/vol9/iss2/19THE INTERNATIONAL LAW OF THE SEA, 2 Volumes. By D.P.O'Connell, edited by I.A. Shearer. Oxford, England: The Clarendon Press,Vol. I, 1982, 634 pp., Vol. II, 1984, 567 pp., $74.00.Just twenty years ago, the American geologist John Mero publishedThe Mineral Resources of the Sea, which for the first time described indetail the nature and composition of the polymetallic nodules dredged fromthe bottom of the sea by H.M.S. Challenger nearly a century earlier. Hewrote of their great potential value and became a vocal advocate of theirexploitation. This activity led directly to Arvid Pardo's celebrated "Malteseinitiative" in 1967, which led to the Third United Nations Conference onthe Law of the Sea, convened only fifteen years after the first UNCLOShad essentially codified the then-existing law of the sea. That Conferenceproduced the 1982 United Nations Convention on the Law of the Sea,1which in many respects amounts to the first constitution for the sea.These twenty years have seen a "sea change" in marine and maritimeactivities around the globe, and revolutionary changes in the law of the sea.Most of these changes are incorporated into the volumes under review, thecapstone of the late Professor O'Connell's brilliant career. In the deluge ofliterature on the subject that has spewed forth from nearly every part of theworld during the last two decades, O'Connell's work will remain afloat for avery long time, long after most of the rest has been inundated and con-signed to Davy Jones' Locker.In the Editor's Preface, Ivan Shearer, Professor of Law at the Univer-sity of New South Wales, points out that O'Connell died in mid-1979, that"[a] complete draft of each chapter had been completed by ProfessorO'Connell by the end of 1978 . ."' and that as editor of O'Connell's man-uscript, he had updated the material in Volume I through the Revised In-formal Composite Negotiating Text of 27 August 1980. He does not, there-fore, include the many changes that have taken place in the law of the seaduring the last five years, changes within, outside and since the ThirdUnited Nations Conference on the Law of the Sea (UNCLOS III). VolumeII was completed early in 1983 and thus utilizes the final version of theLaw of the Sea Convention. It should be noted also that while Shearer, likethis reviewer, was attached to a small country's delegation to UNCLOS III,unlike this reviewer he seldom-if ever-attended the Conference. This1. United Nations Convention on the Law of the Sea, opened for signature Dec. 10,1982, U. N. Doc. A/CONF. 62/122 (1982) [hereinafter cited as 1982 Convention], reprintedin 21 I.L.M. 1261 (1982) and in UN CONVENTION ON THE LAW OF THE SEA 1982 (K. R.Simmonds ed. 1983).2. 1 D. P. O'CONNELL, THE INTERNATIONAL LAW OF THE SEA at vii (1982).(279)280 MD. JOURNAL OF INTERNATIONAL LAW & TRADEmay account in part for his incomplete understanding of the political con-text within which the law of the sea is evolving. But more on this later.The Author's Preface leads off with a footnote: "The author had notprepared a preface at the time of his death. What appears here are extractsfrom an address the author gave to the Fifth Commonwealth Law Confer-ence at Edinburgh in 1977, which may serve as a summing up of his per-spective. . ... ,3 Some portions of the preface may be useful in understand-ing this perspective.For the past two hundred years there have been two main streams ofdoctrine respecting the ultimate nature of the international legal sys-tem: There has been the Grotian tradition of moral order, whereby therules of international law have been elucidated by reference to what thesociety of mankind requires for its regular development; and there hasbeen the Vattelian tradition of acquiescence and consent, whereby theserules have been promulgated by reference to the practice of States.The difference between the two has been obscured in practice bythe common doctrine of opinio juris, that is, the doctrine that supposes-that governments act respecting legal conviction and not from motivesof power and gain. This supposition enabled jurists to bridge the gapbetween describing what-States do and indicating what they ought todo-so raising the analysis from the level of anecdote to the level of thenormative.The doctrine of opinio juris provided international lawyers with aworkable methodology which was, in past ages, best observable in thecase of maritime law: practice established the freedom of the seas andthe nature of the territorial sea, although admittedly it did not establishits geographical extent. But the methodology has now collapsed withthe doctrine that prompted it. Governments in the matter of the Law ofthe Sea no longer act by reference to what they think the law is: theyset out deliberately to break with the traditional rules in order to bringabout the changes which they seek . .. .O'Connell goes on to explain this new methodology of governments,describing their differing geographical, economic and political situationsand the problem of reconciling these differences in a lawmaking conference.He concludes with this observation, more prescient than it appeared to bewhen first uttered:3. Id. at ix n.l.4. Id. at ix.[Vol. 9I PUBLIC INTERNATIONAL LAWFor practising lawyers it is clear that these new trends in the Lawof the Sea are of the greatest practical importance. Prosecutions forviolations of the law applicable to the maritime domain will increaseand defence counsel will become more expert in the evidentiaryproblems raised by proof of the location of the offence as well as itsnature. The interaction of international law and municipal law is todayone of the main issues of legal action.5Volume I contains the background material and discussions of the ter-ritorial sea, archipelagos, international straits, internal waters, bays, historicwaters, the seabed, the continental shelf, fishery zones and the exclusiveeconomic zone (EEZ). Volume II covers maritime boundaries; delimitationof the territorial sea, continental shelf and EEZ; jurisdiction over shippingon the high seas, over navigation and port access, in civil and criminalcases, over marine scientific research and over the contiguous zone; enforce-ment of the law; the law of belligerency at sea; and economic warfare atsea. Each volume thus contains both theoretical and case materials andboth international and municipal law. In Volume II there is much that liesoutside the law of the sea as expressed in the Convention, including ele-ments of admiralty law and the law of war. On the other hand, some topicscovered extensively in the Convention are given short shrift in this work oromitted altogether.Each volume begins with a list of abbreviations used and ends with abibliography, a table of cases, an index of conventions and internationalagreements, an index of authors cited and a general index. These referencetools are all extensive, carefully done and of great value to the novice andthe specialist alike. It should be noted, however, that the bibliographies con-tain only "the general works and specialized monographs to which referenceis made" in the book. No journal articles or other sources are included,although the footnotes contain numerous references to such sources. Also, apersonal complaint about a distressing practice which causes unnecessaryproblems for researchers: the bibliographies list only the author's surname,initials of given names, title of the work and date of publication; no givennames, place of publication or publisher are provided.Chapter 1, "The History of the Law of the Sea," covers the subject inonly twenty-eight pages, beginning with the Papal Bull of Alexander VII.There is no mention whatever of attempts by ancient Greece and Rome toexert jurisdiction over portions of the sea and only a passing reference to"the shadowy instance of Venice in the Adriatic."" The subsequent encap-5. Id. at xii.6. Id. at 3.19851282 MD. JOURNAL OF INTERNATIONAL LAW & TRADEsulation of history is fleshed out a bit in Chapter 2, "The General Principlesof the Law of the Sea," in which O'Connell introduces historical evidenceto strengthen his presentation of various theories and principles. He alsoelaborates on the theme offered in the preface: the demise of opinio juris inthe law of the sea. In one sentence, in fact, he describes the essence of theradical change we have seen in the evolution of the law of the sea since theSecond World War: "State practice has thus become less the embodimentof old rules than the vehicle for producing new ones quickly."' In the caseof the continental shelf doctrine, in fact, it was widely accepted so rapidlythat one wag referred to it over a decade ago as "instant custom."After this, follow three chapters on the territorial sea, comprising 176pages altogether. This constitutes one of the most elaborate recent treat-ments of the subject, organized into chapters on its juridical nature, its ex-tent and its measurement. Then, after interruption by a chapter on archi-pelagos, there is a chapter on innocent passage in the territorial sea.Throughout the discussion, O'Connell is generally sure-footed in discussingthe history, general principles and cases but omits a good deal and stumblesoccasionally when considering contemporary developments, especially inUNCLOS III. One example is his section on "the criterion of evaluation"of the territorial sea, which ends with speculation on the nature of the seabeyond twelve nautical miles from the baseline. "Broader claims," he says,"even if expressed to be tantamount to territorial sea claims, are likely todegenerate in practice into nothing more than economic zones, leaving thesea outside the limit of twelve miles equivalent to, if not actually charac-terized as, high seas."8 Even in his subsequent discussion of the juridicalnature of the EEZ,9 he twice mentions but in neither case accepts as validthe concept of the EEZ as sui generis. Yet this very concept had alreadybeen accepted by UNCLOS III at the time of writing and is expressedclearly in Article 55 of the Convention: "The exclusive economic zone is anarea beyond and adjacent to the territorial sea, subject to the specific legalregime established-in this Part .... -"o It remains to be seen whether thisdefinition is an obstacle or an invitation to the conversion by state practiceof the EEZ into a broader territorial sea.The chapters on archipelagos and straits are relatively short and, onthe whole, well done. The treatment is thorough in the three chapters onthe related matters of internal waters: "Bays, Ports and Straits"; "The Con-ventional Rules on Bays"; and "Historic Waters." Of all the topics in-7. Id. at 31.8. Id. at 169. Emphasis added.9. Id. at 575-79.10. 1982 Convention, supra note 1, art. 55. Emphasis added.[Vol. 9PUBLIC INTERNATIONAL LAWcluded, only historic waters is at present controversial, largely because ofthe lack of any precise definition of the term and the general murkiness ofthe whole matter. The 1982 Convention on the Law of the Sea says only inArticle 10 on bays, "The foregoing provisions do not apply to so-called 'his-toric' bays . .. " and in Article 298 that states signing, ratifying or acced-ing to the Convention may refuse to accept specified dispute settlement pro-cedures with respect to disputes "involving historic bays or titles." Recentdisputes over the Gulf of Fonseca, Peter the Great Bay and the Gulf ofSidra are only indicators of how difficult a concept this is to apply in anygiven situation. O'Connell wisely points out that the notion has become en-tangled with the separate and equally vague concept of "vital interests" ofstates. We may expect many more disputes to arise over the juridical char-acter of waters in many parts of the world because of these loopholes in theotherwise reasonable and well-constructed definitions of jurisdictions thatemerged from UNCLOS III.Chapter 12, "The Legal Regime of the Seabed," is far too short forsuch a complex and important topic. In fact, only nine pages are devoted tothe question of deep seabed mining, a topic which dominated the latter halfof UNCLOS III, looms large in the United Nations Convention on the Lawof the Sea and was the principal reason (or excuse) for the refusal of theUnited States, the United Kingdom and the Federal Republic of Germanyto sign the Convention. This chapter constitutes essentially a preliminarybackground essay on the subject rather than a coherent and useful analysisof it. The current literature on the subject is replete with far better treat-ments of it.O'Connell's treatment of the continental shelf is better. It does not ex-plain the origin of the relevant Truman Proclamation of 194511 in the long-standing dispute between the federal government and the states of Califor-nia, Texas, Louisiana and Florida about jurisdiction, over so-called "tide-lands oil," but it does explain the precursors of the proclamation in theUnited States and elsewhere, and reactions to it around the world. Someuseful material is also included on the security of continental shelf installa-tions and on control of production from the United Kingdom's continentalshelf. The major contemporary shelf issue-its outer limit-is adequatelyhandled, although the discussion is not up to date.Separate chapters are devoted to fishery zones and to exclusive eco-nomic zones, a reasonable approach especially since fishery zones still sur-vive despite the adoption of EEZs by most coastal states. The former topicis treated more extensively than the latter but, considering its newness the11. Proclamation No. 2667, Sept. 28, 1945, 10 Fed. Reg. 12,304 (1945), reprinted in 59Stat. 884.1985]284 MD. JOURNAL OF INTERNATIONAL LAW & TRADEEEZ is handled adequately. The major exception to this assessment isO'Connell's failure to explain the sui generis nature of the EEZ, as notedabove. Like the chapter on seabed mining, it must be considered as tenta-tive, whereas the treatment of fishery zones is more definitive.While Volume I presents primarily theoretical, historical and analyti-cal material, Volume II contains chiefly technical material which supple-ments that in Volume I. The contents of this volume may be divided intothree parts. The first part contains three chapters on boundaries, delimita-tion of the territorial sea and delimitation of the continental shelf and theEEZ. In each instance, there is some theoretical and historical background,but the emphasis is on technical matters. In general, these chapters consti-tute a useful compilation, though hardly a definitive one, of material onsuch matters as techniques of drawing boundaries on different types ofcharts, special problems of delimitation and the relationship between cus-tomary law, the Geneva Convention on the Continental Shelf and the shelfprovisions of the 1982 Convention. The discussions of maritime boundariesin both volumes would have been greatly enhanced by diagrams and maps.The second part contains nine chapters on jurisdiction and one on en-forcement. It is here that O'Connell appears to be most confident, mostthorough and least open to criticism. Throughout are interwoven the theo-retical and practical, historical and contemporary, domestic and interna-tional, public and private international law. As might be expected, there ismore detailed treatment of the more traditional topics-shipping, naviga-tion and port access, civil and criminal jurisdiction, the high seas, pollutionand the contiguous zone-and rather less on marine scientific research. Thechapter on enforcement is quite good but is likely to need revision-or atleast expansion-before long, in view of onrushing developments.The final two chapters, on armed and economic warfare, are generallyquite good, even recognizing the practical difficulties of applying traditionalrules under contemporary circumstances. The Falkland Islands war of 1982is discussed in this context. The more recent cases of attacks on neutralshipping in the Persian Gulf by both Iraq and Iran, and the mining of Nic-araguan ports by the United States comes also to mind. Nevertheless, eventhese acts have been limited ones and the international community has in-voked traditional rules to contain them. O'Connell's material will remainuseful for some time.An overall assessment of the work by O'Connell and Shearer remains.First, it should be emphasized that this is one book in two parts, not twoseparate books. They are quite interdependent and to use one without theother would be to do an injustice to both. Second, it should be noted thatthis work and the United Nations Convention on the Law of the Sea arenot coextensive. O'Connell includes much material not covered by the Con-vention, as noted above, but omits much that is included in the Convention.[Vol. 9PUBLIC INTERNATIONAL LAWAmong these topics are: Part IX, "Enclosed or Semi-enclosed Seas"; PartX, "Right of Access of Land-locked States to and from the Sea and Free-dom of Transit"; Part XIV, "Development and Transfer of Marine Tech-nology"; and Part XV, "Settlement of Disputes." Any contemporary trea-tise on the law of the sea should at least recognize the existence of thesetopics, even if they are treated as superficially as some of the other topicshave been in this book.A third observation is that Shearer's updating of O'Connell's draft isspotty and uneven, even in Volume I. At various times the latest referenceon a topic may be given as the 1978, 1980 or final (1982) version of theConvention. Finally, overall, it can be said that this book is strongest in thearea of historical development, especially cases and state practice, andweakest in the political context of contemporary developments. That is, it isat its best in discussing the evolution of the law of the sea through 1958 andin discussing those elements of the law of the sea that have changed littlesince then.Professor Shearer would have rendered an even greater service than hedid by editing O'Connell's work if he had added a chapter of his own sum-marizing the current state of the law of the sea, especially in light of devel-opments outside UNCLOS III and the refusal of some major powers tosign its Convention. A summary chapter could have served to integrate thetwo volumes, update the whole work and clarify many issues for the benefitof students, scholars and practitioners.Despite the criticisms directed at the book in this review, it is overall avery fine work, a worthy successor to McDougal and Burke, The PublicOrder of the Oceans,'2 as a basic text and reference on the law of the sea.Its weaknesses should be borne in mind, however, and anyone using itwould be well advised to supplement it with some of the newer material onUNCLOS III, on the United Nations Convention on the Law of the Seaand on developments since 1982.Martin Ira Glassner*12. M. S. McDOUGAL & W. T. BURKE, THE PUBLIC ORDER OF THE OCEANS (1962).* Ph.D. in International Relations, Claremont Graduate School; Representative of theInternational Law Association to the United Nations; Professor and Chairman, Department ofGeography, Southern Connecticut State University.1985]

The International Law of the Sea, by D. P. O\u27Connell, Edited by I. A. Shearer

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The International Law of the Sea, by D. P. O\u27Connell, Edited by I. A. Shearer

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