Zonal Versus Functional Approach in the New Law of the Sea

The international law of the sea has its roots in Roman law embedded in the ancient doctrines of res communis and res nullius. The law came from custom and practice and was transformed into customary law periodically confirmed and consolidated by fundamental doctrines such as mare liberum or freedom of the seas enunciated by Hugo Grotius in the 1500s and eventually by the doctrine of common heritage of mankind by Ambassador Arvid Pardo in relatively recent times. The law of the sea has thus evolved into convention law representing the codification of the customary law. This happened through four conventions adopted in 1958 by the United Nations generally referred to as the Geneva Conventions and culminated into the United Nations Convention on the Law of the Sea (UNCLOS) in 1982. UNCLOS entered into force in 1994 and it largely represents the current state of the law in this field. It is notable that in this evolutionary process, originally the approach taken in the earlier conventions was the zonal approach. By contrast, the 1982 Convention has taken a shift in the trend described by academics as the functional approach to the law of the sea. This approach focuses on functions and activities carried out in the zone or protective measures typical of some functions rather than the mere existence of a zone. This thesis attempts to compare and contrast the zonal versus the functional approach first, by presenting the salient features of each zone, and then by engaging in a detailed analytical discussion of four functions on a selective basis. These functions or activities are fishing and fisheries, navigation, marine scientific research and protection of the marine environment. The discussion primarily draws on relevant UNCLOS Parts and provisions but it also refers to commentaries of scholars as well as court decisions. The thesis concludes that the zonal and functional approaches are not entirely independent of each other. They are represented in an integrated fashion to define the regime of international law of the sea as it stands today. In this writer.s opinion, the integrated adoption of the two approaches is desirable and should be maintained