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Navigational Servitudes: Paradigm Commerce in the Balance

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Chapter Summary

The interdependent beneficial interests of the common navigational freedom principle constitute the essence of a resulting high seas regime reciprocal public trust, the res communis. Evolution of those beneficial interests arose through the use of navigable waters for commerce, eventually forming high seas regime servitudes protecting and preserving the various aspects of navigational usage. The United States has acted to undertake the parallel trustee role both in regard to marginal sea exercises of protective jurisdiction, as well as to administer the Royal Prerogative jus publicum public rights to fishing and navigation under the Commerce Clause of the 1789 United States Constitution. The United States Senate is considering ratification of United Nations Convention on the Law of the Sea (UNCLOS) following the current State Department request to the Senate for advice and consent on UNCLOS and the 1994 Title XI Agreement.

Keywords: 1994 Title XI Agreement; Commerce Clause; navigational freedom principle; public rights; public trust; Royal Prerogative jus publicum; UNCLOS; United States Senate



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