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5. New perspectives on the use of the sea and regulatory deficiencies
Other founding paradigms of this reg- Still under this same mantle of uncondi-
ulatory evolution have also been gradually tional respect for the sovereignty of States,
rethought. Although there is a perception there was a clear expression in the Conven-
of the sea as free and common to all who tion of reservations and immunities main-
wanted to make use of it, this is not the tained for State ships (understood mostly
actual reality. In essence, the great naval as Warships, but also other ships that are
powers advocate this “freedom of naviga- formally under the official guardianship of
tion”, understood in the broadest possible the State - such as ships of Heads of State
conception, among other reasons, because and Government) (ZANELLA, 2017).
they have maritime power (Naval Forces This precaution with State´s Ships and
– military and Merchant Fleet) capable of unconditional respect for the Sovereignty
occupying the oceans as a hole. On the of States (with only rare exceptions pro-
other hand, States with fewer resources vided by the Convention, such as cases of
and power tend to advocate the attempt trafficking in narcotic substances or slaves,
to delimit spaces – especially along their for example) ended up contributing little
coasts – in order to have minimally exclusiv- to the regulation of facing threats to Mar-
ist rights. This dilemma persists. In spite of itime Security, especially regarding the so-
the aforementioned regulation through the called classic threats (naval wars between
UN Conventions, it has apparently consoli- States), but also regarding the so-called
dated these powers and rights. “new threats” such as the cases of Mar-
The political-ideological rivalry of the pe- itime Piracy and Terrorism. In relation to
riod gave the Convention (UNCLOS) a sprit classic threats, the more specific Conven-
de la loi, manifest from its preamble, which tions (and protocols) in force refer to the
is the unconditional respect for the principle initiatives of the so-called Hague Confer-
of the “Sovereignty of the Peoples”, that ences, from the turn of the 19th to the
unfolded into two founding principles of the 20th century, which made much progress
Convention. These principles are respect for in both jus ad bellum and jus in bello.
the inherent rights of States - materialized in The second likely issue that is still under
concepts such as sovereignty in the Territori- construction is the surreptitious expansion
al Sea, the “sovereignty rights” in its Contig- of state power over maritime areas. The
uous Zones, Exclusive Economic Zones and long discussion that resulted in UNCLOS, for
Continental Platforms -, and in the principle some time, seemed to have definitively con-
of the “Sovereignty of Flag States” - which solidated the extent to which coastal States
unfolds in the extension of jurisdiction of the could argue notions of power (although not
States that attribute their flags to the mari- fully exercised in its classic sovereign formu-
time environment, wherever they are, when, lation). The broad understanding of sover-
only for very clear exceptionalities, they re- eignty in the Territorial Sea and ‘sovereignty
main under the tutelage of their Flag States. rights’ in the Exclusive Economic Zone (EEZ)
222 BLUE ECONOMY
seemed to have settled the matter. Howev- merged sea floor at the North Pole (refer-
er, several unilateral initiatives have shown ring to historical territorial landmarks). In
that this appetite for ‘territorialization of the other words, the “sea of all” continues in
seas’ persists (OXMAN, 2006). a movement pointed out by President Tru-
This continuous and still uninterrupt- man, of the USA, in 1945, who prophesied
ed movement is not only manifested by that, first there was the colonization of the
the request for extension of Continental New World, then the developed peoples
Shelves which, according to a 2010 survey, colonized Africa, however, the next move-
already added up to over 177 million km² ment would be the “colonization” of the
(approximate area of all of North America seas. And so it goes, in perspective.
(USA, Canada and Mexico added togeth- The third paradigm that is seen from the
er) (SCHOOLMEESTER, BAKER - UNEP/ perspective of change, stems from the nat-
GRID-ARENDAL, 2011) which, added to ural technological advances, some already
the already consolidated MT and ZEE of present and others about to be massified,
the States, represented about 47% of the such as the issue of cyber security of mari-
entire global maritime surface. And that time power that can impact various security
movement continues. In 2020, another 17 aspects at sea. Or, mainly, the perspective
million km² were added to this area (cor- grows of the introduction of autonomous
responding to the territory of Russia) and maritime (both merchant and war) ships.
the percentage of areas under some form This possibility, when implemented, will
of state control already exceeded to about confront the fundamentals of the law of
53% of the maritime area (BEIRÃO, 2022). the sea. The first of them, in relation to the
However, this expansionist movement shipping traffic, since several attributions
is not only materialized with requests for and responsibilities - arising from the princi-
extension of Continental Shelves. States ple of the Flag State - reside under the for-
have expressed this willing of power, also mal tutelage of the Ship´s Captain. How to
making use of concepts not provided for in resolve the various issues in which UNCLOS
the UNCLOS and of unilateral regulations transfers this decision to the Captain in the
such as the concepts of “Dominial Sea” of event of his physical absence on the ship?
Peru (which considers full domain – which The second perspective of the advance to-
would only be in its MT – until 200MN), wards autonomy at sea is more related to the
the “Chile’s presential sea” (which con- naval power, it also confronts the very defi-
siders its full control over living resources nition (UNCLOS, Art. 29) of a warship. There
in an area that is as far away as 700MN are presuppositions of “external marks dis-
from the coast), or even from China with tinguishing”, but they presuppose Captain
its “Nine Traces” Strategy that encompass- of the national Armed Forces and military
es as its waters the entire South China Sea. crew (SCHIMITT, GODDARD, 2016). How to
Even historical symbolic actions have been consider a “system”, visibly as an warship,
used, as in the case of Russia by fixing its autonomous and that does not fit in the
flag, using a submarine, exactly on the sub- conceptualization of the law of the sea?
The Regulation of the Sea: Consolidation and Perspectives 223