1. Vindicatory violence and lèse-majesté: the struggle for control over peacekeeping practices

The advent of modernity, both juridical and judicial, has traditionally been identified with initiating the process that made criminal law independent from civil law, to the detriment of the latter, and the concurrent emergence of the public criminal process at the expense of private solutions to conflict resolution. On the terminus a quo of this evolution, historiography has not always been in agreement. Some have preferred to relegate the entire pre-revolutionary era to a sort of archaism in which jurists were inclined ‘to treat criminal issues […] with a civil law mentality, as if criminal law were a necessary complement to civil law, a complex of defences prepared to protect particular positions of privilege of individuals or the community.’ Others have instead highlighted how much modernity was already present in the criminal doctrine of the fifteenth and sixteenth centuries, which was increasingly forced to address the issue of the public relevance of crimes, the threat they posed to the security and preservation of the state. The transformation, in the direction of an indefinite expansion, of the concept and fields of application of the crimen laesae maiestatis was, as Mario Sbriccoli showed almost half a century ago, one of the main instruments – underpinned by an ideology, which may perhaps be seen as the primary force that allowed state jurisdiction to erode fundamental areas of legitimacy from competing jurisdictions, especially feudal ones.

1. Bi-confessionality, social peace and arbitral justice: the monarchy of France

The presence of a significant Huguenot minority and the bloody civil war that erupted from the early 1560s made France an extraordinarily important laboratory for the development of the concepts of concord and peace. The intense theoretical reflection on religious concord was not detached from the practices aimed at overcoming interconfessional conflict, which in the context of communities could arise from other factors (personal and family enmities, hatred, vengeance). The 1973 essay by Natalie Zemon Davis on the rites of violence in religious conflict in France undoubtedly marked a historiographical turning point, not least by her ability to graft the anthropological perspective onto the historical data of ‘crowd violence’. Just as it is possible to write a history of violence, even in its ritual and performative dimension, one can attempt to write a history of peace and the search for peaceful coexistence in contexts of bi-confessionality. The challenge, as in the analysis of conflict and explosions of violence, lies in evaluating the degree of impact of religious motivation in the search for concord, assuming it is possible to fully separate it from social factors.

The theoretical reflection on religious concord took its cue from the reflection on social concord, a common heritage, as has been seen, of Renaissance political thought, as well as from Erasmus-inspired Christian irenicism.

Eighteenth-century perspectives on judicial modernity

It is always an interesting exercise to observe how the Enlightenment culture projected its idea of modernity onto European institutions – political, legal and social – of preceding centuries, an idea to which we are still deeply attached. The administration of justice, and thus the governing of violence and conflict, concerns the most fundamental dynamics of communal living, and the Enlightenment was able to grasp the centrality of peace in laying the foundations of legal institutions arising from the dissolution of the ancient world. In the eighteenth-century debate, from France to Scotland, the formation of Roman–barbarian realms, with the consequent emergence of feudal institutions, was generally identified as the birth of Europe, as is well known.

In the XXXth book of the Esprit des lois (The Spirit of Laws), in chapter XIX, when addressing the issue of the Compositions chez les peuples barbares (On Compositions among the Barbarous Nations), Montesquieu provides very precise coordinates useful for conceptually placing peace in the development of European civilisation. Just before, in the XXVIIIth book, the great French philosopher had outlined the main differences between Salic law and the laws of other barbarian peoples regarding compositions (financial settlements), the judicial evidence required (such as duelling), and the point of honour. Now, drawing on Tacitus, Montesquieu reminds us that among the Germans hatred was quenched through a composition, as only two types of criminals were punished with death: traitors (by hanging) and cowards (by drowning).

The territorial sea is the first coastal State maritime zone seawards of the baseline and internal waters. This chapter traces its development as a concept, and then addresses the current legal status of the bed, subsoil and superjacent air space of the territorial sea. The breadth of the territorial sea is explained, with reference to relevant State practice. The chapter provides a detailed analysis of the right of innocent passage, including of warships and ships carrying hazardous cargoes, and of the right to deny and suspend passage. Other rights, as well as the duties, of the coastal State are discussed, including the scope of its legislative and enforcement jurisdiction over foreign vessels.

In many parts of the world, the maritime zones (territorial sea, contiguous zone, exclusive economic zone (EEZ) and continental shelf) of neighbouring States overlap. If conflicts over resource exploitation and other activities in areas of overlap are likely, it will be desirable for the States concerned to establish a boundary between their overlapping zones, whether by negotiation, with the aid of a mediator or conciliation commission, or by recourse to arbitration or an international court. The UN Convention on the Law of the Sea provides limited guidance as to how such boundaries are to be delimited, especially boundaries between overlapping EEZs and continental shelves. Greater guidance has been provided by international courts and arbitral tribunals. The chapter begins by explaining the possible processes by which a maritime boundary may be established. It then analyses the relevant provisions of the Convention and the now substantial body of case law on maritime boundary delimitation. It also examines possible alternatives to a maritime boundary, such as a zone of joint management, as well as the obligations of restraint to which States are subject where there is no boundary or agreed alternative arrangement. Finally, the possible consequences of predicted sea-level rise for existing maritime boundaries are explored.

The contiguous zone is a zone of sea contiguous to and seaward of the territorial sea, extending up to 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. In the contiguous zone, the UN Convention on the Law of the Sea (UNCLOS) provides that States have limited powers for the prevention and punishment of breaches of customs, fiscal, sanitary and immigration laws. The chapter begins by explaining the development of the concept of the contiguous zone and how the zone is delineated. Noting that a State must assert its right to a contiguous zone, the chapter considers claims made to a contiguous zone. It then addresses the legal status of the zone in detail, notably the scope of coastal State jurisdiction and the extent to which States claim contiguous zones for purposes other than those expressly set out in UNCLOS.

Fish from the sea have long been an important source of food for many human communities. The degree to which this will continue depends on how well marine fisheries are managed. However, various biological and socio-economic factors mean that such management is not easy, as the beginning of this chapter explains. The chapter continues by analysing the array of treaties and soft law instruments that attempt to provide for effective fisheries conservation and management, both within and beyond national jurisdiction. This body of law includes: the UN Convention on the Law of the Sea; the UN Fish Stocks Agreement; the UN Food and Agriculture Organization (FAO) Compliance and Port States Measures Agreements; measures adopted by regional fisheries management organisations and arrangements; various UN General Assembly resolutions, especially those concerning high seas drift-net fishing and vulnerable marine ecosystems; the Code of Conduct for Responsible Fisheries; and the FAO’s International Plans of Action, notably that on Illegal, Unreported and Unregulated (IUU) Fishing. The chapter demonstrates that this substantial body of measures has failed to prevent the unsustainable exploitation of around one-third of all fish stocks; the adverse impact of the fishing industry on species other than fish, including dolphins, turtles and seabirds; and the damage caused by fishing gear to vulnerable and ecologically important habitats. Various reasons for this failure are suggested.