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The Community Interest in a Narrow Territorial Sea: Inclusive Versus Exclusive Competence over the Oceans (with William T. Burke), 45 Cornell Law Quarterly 171 (1960)


In modern times the over-riding policy of the international law of the sea is commonly regarded as that of establishing and maintaining a public order in the shared use of, and shared competence over, the oceans, appropriately balancing the inclusive interests of all states and the unique, exclusive interests of particular states in the greatest production of values for all mankind. The broad outlines of both the highest level complementary principles and the more detailed specific prescriptions, embodying such contraposed inclusive and exclusive interests, by which the authoritative decision-makers of the general community seek to secure such economic balance, are the common knowledge both of scholarly observers and of participants in the processes of use, claim, and decision by which the oceans are exploited and regulated. The necessity, in the rational application of broad principles and detailed prescriptions, for a comprehensive, informed, and contextual approach, considering every specific problem in terms of all the factors in the context relevant to rational choice between alternatives in decision, seems, however, to have achieved somewhat less recognition. Thus, while officials and scholarly observers frequently appear to concur upon the general inclusive and exclusive interests at stake in particular problems, they also commonly appear either to neglect entirely the specific factors uniquely revelant to particular policy problems or to attempt to reach decision without adequate investigation of the appropriate weight to be accorded the relevant factors. Efforts to resolve the perennial problem of the permissible width of the territorial sea, which has recently provoked a spate of the most diverse and potentially harmful claims and has thus far proved refractory to explicit multilateral agreement, seem notably to have been affected by a disregard of certain special environmental factors particularly relevant to a rational policy choice. Because of the great importance of this problem to the whole public order of the oceans, it may not be inappropriate to suggest both a brief examination of the general context which establishes the importance of the problem and a more comprehensive, detailed scrutiny of the special factors which ought to be taken into account by decision makers.

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