Statutes
| Published date | 01 July 1965 |
| Author | Cedric Thornberry |
| Date | 01 July 1965 |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01089.x |
STATUTES
FI8HERY
LIMITS
ACT,
1964
A
THEORETIC~L
truism, self-evident to all (save, occasionally, those
most intimately acquainted with the subject), is that the content
of
a relevant norm of international law is in no case determined
by the practice
of
any single state. Customary international
law comprises instead a distillation of the essence of the behaviour,
in a particular field,
of
a consensus
of
states. Orthodox legal
philosophy requires the application
of
a further criterion in the
evaluation of a proved practice asserted
to
be a rule of law-that
it shall have been done
opinione
juris,
sive necessitatis.
This
psychological test, logically suspect and notoriously difficult to
apply, may be in process
of
abandonment in favour of another,
less
metaphysical and more readily judicially ascertainable.
The abstract validity
of
the idea
of
consensus should not be
taken to such pedantic lengths as to obscure the fact that, in the
development through state practice of rules of customary inter-
national law, some states are much more equal than others. In
the century before
1914,
for example, international law was little
more than the sum of the practice
of
half a dozen leading nations
of
the Concert
of
Europe, together with the United States.
Amongst these nations Great Britain maintained an undeniable
maritime supremacy. Accordingly, the law of the sea of the period
was based largely upon British practice. The maritime nations
had
a.
common interest in the creation and maintenance
of
a legal
rCgime which would afford the widest possible scope for the
exploitation
of
their advantage.
A
legal doctrine
of
the
‘‘
freedom
of
the seas
”
was thus elaborated which sanctioned the opening of
the seas to their fullest extent
for
the purposes of commerce, naval
security and fishing. The law was the consequence of “a
marriage of
laissez-faire
economics
to
British gunboats.”
The origins
of
the idea of the freedom
of
the seas are traceable
to the period in which Grotius lived and wrote; indeed, his
Mare
Lhberum’
provided an admirable apologia for its growth in the
seventeenth century and its ultimate triumph in the eighteenth.
The
volte-face
ta
this principle was striking.
For
centuries before
the states bordering the Mediterranean and the Atlantic had
asserted and made good their claims to sovereignty over the
adjacent waters. This country, for example, claimed a vast area
Morton
A.
Kaplan
and
Nicholas
de
B.
Katzenbach,
The Political Foundations
of
International Law,
1961,
p.
147.
2
1583-1645.
3
1609.
458
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