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The International Law of the SeaIndia and the UN Convention of 1982$
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Print publication date: 2010

Print ISBN-13: 9780198060000

Published to Oxford Scholarship Online: October 2012

DOI: 10.1093/acprof:oso/9780198060000.001.0001

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Freedom of the Seas

Freedom of the Seas

(p.1) 1 Freedom of the Seas
The International Law of the Sea

O.P. Sharma

Oxford University Press

This chapter describes the concept of the freedom of the seas, first articulated by the Dutch jurist Hugo Grotius who published Mare Liberum or The Free Sea in 1609. While some initially opposed its thesis, most European powers saw its advantages in terms of trade during colonial rule. This belief continued until the issue of deep sea mining came up with the Res Nullius argument which postulates that the sea bed can be exclusively claimed by the first occupier. Arvid Pardo’s address (to the UN General Assembly in 1967) articulating how the sea bed was the common heritage of mankind resulted in the international community emphatically rejecting res nullius. The creation of an international regime to govern the sea and its seabed are then discussed. The last half of the chapter discusses various issues including Flag State Jurisdiction on the High Seas, piracy, the case of Alondra Rainbow and the need for updating criminal legislation, unauthorized broadcasting, the right of visit, drug trafficking, pollution of waters, buzzing, the right of hot pursuit and constructive presence, air defence identification zones, weapons testing, and the freedom of the seas during armed conflict. In conclusion, the author fears that various factors—such as oil drilling, weapons testing, dangerous cargoes among others—are currently working towards the demise of the principle of the freedom of the seas.

Keywords:   freedom of the seas, res nullius, Alondra Rainbow, criminal legislation, Oil drilling, Nuclear testing, buzzing, piracy, flag State jurisdiction, high seas

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