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The First Great Common

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There are two, and perhaps three great common areas – outer space, the deep seabed, the Area; and (at least philosophically) cyberspace – available to humankind today. The first great commonwas, and remains in large part, the high seas. Part I traces the early history of the law of the sea, the customary law of the high seas, and the freedom of the seas principle from the Renaissance to the mid-twentieth century. Part II analyzes the freedoms of the high seas as negotiated in the 1958 and 1982 law of the sea conventions, with reference to similar concepts in space law and for certain land areas, notably Antarctica. Part III relates the law of the sea to the law of maritime warfare and neutrality, a lex specialis alongside general oceans law, discusses special treaty rules under the conventions, the impact of customary law and jus cogens on treaty and customary norms, and the place of the law of international organizations, in particular U.N. Security Council and General Assembly resolutions, contrasting lawmaking for space activities. Part IV notes other factors in law of the sea issues for this century: small wars, often noninternational in nature, e.g., insurgencies and civil wars; non-state actors like pirates or terrorists, the growing influence of nongovernmental organizations, and “lawfare,” often waged in instant media like the Internet Part of my inquiry is to ask whether problems and issues that have come with high seas uses in past centuries might be revisited for space and seabed issues. Justice Oliver Wendell Holmes, Jr. wrote that “a page of history is worth a volume of logic” and that “the life of the law has not been logic; it has been experience.” George Santayana warned that those who cannot remember the past are condemned to repeat it, perhaps including past mistakes. Might these thoughts, among others that follow, be useful in analysis?

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