International Law. A Treatise
Chapter 39 : RISE OF THE FREEDOM OF THE OPEN SEA Grotius, II. c. 2, -- 3--Pufendorf, IV. c. 5, -- 5-

RISE OF THE FREEDOM OF THE OPEN SEA

Grotius, II. c. 2, -- 3--Pufendorf, IV. c. 5, -- 5--Vattel, I. ---- 279-286--Hall, -- 40--Westlake, I. pp. 161-162--Phillimore, I. ---- 172-179--Taylor, ---- 242-246--Walker, Science, pp.

163-171--Wheaton, ---- 186-187--Hartmann, -- 64--Heffter, -- 73--Stoerk in Holtzendorff, II. pp. 483-490--Bonfils, Nos.

573-576--Despagnet, No. 401--Pradier-Fodere, II. Nos.

871-874--Nys, II. pp. 132-139--Merignhac, II. pp. 498-505--Calvo, I. ---- 347-352--Fiore, II. Nos. 718-726--Martens, I. -- 97--Perels, -- 4--Azuni, "Diritto maritimo" (1796), 1, c. I. Article III.--Cauchy, "Le droit maritime international considere dans ses origines," 2 vols. (1862)--Nys, "Les origines du droit international" (1894), pp. 377-388--Castel, "Du principe de la liberte des mers" (1900), pp. 1-15--Fulton, "The Sovereignty of the Seas" (1911), pp. 1-56.

[Sidenote: Former Claims to Control over the Sea.]

-- 248. In antiquity and the first half of the Middle Ages navigation on the Open Sea was free to everybody. According to Ulpia.n.u.s,[480] the sea is open to everybody by nature, and, according to Celsus,[481] the sea, like the air, is common to all mankind. Since no Law of Nations in the modern sense of the term existed during antiquity and the greater part of the Middle Ages, no importance is to be attached to the p.r.o.nouncement of Antoninus Pius, Roman Emperor from 138 to 161:--"Being[482] the Emperor of the world, I am consequently the law of the sea." Nor is it of importance that the Emperors of the old German Empire, who were considered to be the successors of the Roman Emperors, styled themselves among other t.i.tles "King of the Ocean." Real claims to sovereignty over parts of the Open Sea begin, however, to be made in the second half of the Middle Ages. And there is no doubt whatever that at the time when the modern Law of Nations gradually rose it was the conviction of the States that they could extend their sovereignty over certain parts of the Open Sea. Thus, the Republic of Venice was recognised as the Sovereign over the Adriatic Sea, and the Republic of Genoa as the Sovereign of the Ligurian Sea. Portugal claimed sovereignty over the whole of the Indian Ocean and of the Atlantic south of Morocco, Spain over the Pacific and the Gulf of Mexico, both Portugal and Spain basing their claims on two Papal Bulls promulgated by Alexander VI. in 1493, which divided the new world between these Powers. Sweden and Denmark claimed sovereignty over the Baltic, Great Britain over the Narrow Seas, the North Sea, and the Atlantic from the North Cape to Cape Finisterre.

[Footnote 480: L. 13, pr. D. VIII. 4: mari quod natura omnibus patet.]

[Footnote 481: L. 3 D. XLIII. 8: Maris communem usum omnibus hominibus ut aeris.]

[Footnote 482: L. 9 D. XIV. 2: ??? ?? t?? ??s?? ??????, ? d?

???? t?? ?a??ss??.]

These claims have been more or less successfully a.s.serted for several hundreds of years. They were favoured by a number of different circ.u.mstances, such as the maintenance of an effective protection against piracy for instance. And numerous examples can be adduced which show that such claims have more or less been recognised. Thus, Frederick III., Emperor of Germany, had in 1478 to ask the permission of Venice for a transportation of corn from Apulia through the Adriatic Sea.[483]

Thus, Great Britain in the seventeenth century compelled foreigners to take out an English licence for fis.h.i.+ng in the North Sea; and when in 1636 the Dutch attempted to fish without such licence, they were attacked and compelled to pay 30,000 as the price for the indulgence.[484] Again, when Philip II. of Spain was in 1554 on his way to England to marry Queen Mary, the British Admiral, who met him in the "British Seas," fired on his s.h.i.+p for flying the Spanish flag. And the King of Denmark, when returning from a visit to James I. in 1606, was forced by a British captain, who met him off the mouth of the Thames, to strike the Danish flag.

[Footnote 483: See Walker, "History," I. p. 163.]

[Footnote 484: This and the two following examples are quoted by Hall, -- 40.]

[Sidenote: Practical Expression of claims to Maritime Sovereignty.]

-- 249. Maritime sovereignty found expression in maritime ceremonials at least. Such State as claimed sovereignty over a part of the Open Sea required foreign vessels navigating on that part to honour its flag[485]

as a symbol of recognition of its sovereignty. So late as 1805 the British Admiralty Regulations contained an order[486] to the effect that "when any of His Majesty's s.h.i.+ps shall meet with the s.h.i.+ps of any foreign Power within His Majesty's Seas (which extend to Cape Finisterre), it is expected that the said foreign s.h.i.+ps do strike their topsail and take in their flag, in acknowledgment of His Majesty's sovereignty in those seas; and if any do resist, all flag officers and commanders are to use their utmost endeavours to compel them thereto, and not suffer any dishonour to be done to His Majesty."

[Footnote 485: See Fulton, "The Sovereignty of the Seas" (1911), pp. 38 and 204-208.]

[Footnote 486: Quoted by Hall, -- 40.]

But apart from maritime ceremonials maritime sovereignty found expression in the levying of tolls from foreign s.h.i.+ps, in the interdiction of fisheries to foreigners, and in the control or even the prohibition of foreign navigation. Thus, Portugal and Spain attempted, after the discovery of America, to keep foreign vessels altogether out of the seas over which they claimed sovereignty. The magnitude of this claim created an opposition to the very existence of such rights.

English, French, and Dutch explorers and traders navigated on the Indian Ocean and the Pacific in spite of the Spanish and Portuguese interdictions. And when, in 1580, the Spanish amba.s.sador Mendoza lodged a complaint with Queen Elizabeth against Drake for having made his famous voyage to the Pacific, Elizabeth answered that vessels of all nations could navigate on the Pacific, since the use of the sea and the air is common to all, and that no t.i.tle to the ocean can belong to any nation, since neither nature nor regard for the public use permits any possession of the ocean.[487]

[Footnote 487: See Walker, "History," I. p. 161. It is obvious that this att.i.tude of Queen Elizabeth was in no way the outcome of the conviction that really no State could claim sovereignty over a part of the Open Sea. For she herself did not think of dropping the British claims to sovereignty over the "British Seas." Her arguments against the Spanish claims were made in the interest of the growing commerce and navigation of England, and any one daring to apply the same arguments against England's claims would have incurred her royal displeasure.]

[Sidenote: Grotius's Attack on Maritime Sovereignty.]

-- 250. Queen Elizabeth's att.i.tude was the germ out of which grew gradually the present freedom of the Open Sea. Twenty-nine years after her answer to Mendoza, in 1609, appeared Grotius's short treatise[488]

"Mare liberum." The intention of Grotius was to show that the Dutch had a right of navigation and commerce with the Indies in spite of the Portuguese interdictions. He contends that the sea cannot be State property, because it cannot really be taken into possession through occupation,[489] and that consequently the sea is by nature free from the sovereignty of any State.[490] The attack of Grotius was met by several authors of different nations. Gentilis defends Spanish and English claims in his "Advocatio Hispanica," which appeared in 1613.

Likewise, in 1613 William Welwood defends the English claims in his book, "De dominio maris." John Selden wrote his "Mare Clausum sive de dominio maris" in 1618, but it was not printed until 1635. Sir John Burroughs published in 1653 his book, "The Sovereignty of the British Seas proved by Records, History, and the Munic.i.p.al Laws of this Kingdom." And in defence of the claims of the Republic of Venice Paolo Sarpi published in 1676 his book "Del dominio del mare Adriatico." The most important of these books defending maritime sovereignty is that of Selden. King Charles I., by whose command Selden's "Mare Clausum" was printed in 1635, was so much impressed by it that he instructed in 1629 his amba.s.sador in the Netherlands to complain of the audacity of Grotius and to request that the author of the "Mare liberum" should be punished.[491]

[Footnote 488: Its full t.i.tle is: "Mare liberum, seu de jure quod Batavis compet.i.t ad Indicana commercia Dissertatio," and it is now proved that this short treatise is only chapter 12 of another work of Grotius, "De jure praedae," which was found in ma.n.u.script in 1864 and published in 1868. See above, -- 53.]

[Footnote 489: See below, -- 259.]

[Footnote 490: Grotius was by no means the first author who defended the freedom of the sea. See Nys, "Les origines du droit international," pp.

381 and 382.]

[Footnote 491: See Phillimore, I. -- 182.]

The general opposition to Grotius's bold attack on maritime sovereignty prevented his immediate victory. Too firmly established were the then recognised claims to sovereignty over certain parts of the Open Sea for the novel principle of the freedom of the sea to supplant them. Progress was made regarding one point only--namely, freedom of navigation of the sea. England had never pushed her claims so far as to attempt the prohibition of free navigation on the so-called British Seas. And although Venice succeeded in keeping up her control of navigation on the Adriatic till the middle of the seventeenth century, it may be said that in the second half of that century navigation on all parts of the Open Sea was practically free for vessels of all nations. But with regard to other points, claims to maritime sovereignty continued to be kept up.

Thus the Netherlands had by article 4 of the Treaty of Westminster, 1674, to acknowledge that their vessels had to salute the British flag within the "British Seas" as a recognition of British maritime sovereignty.[492]

[Footnote 492: See Hall, -- 40, p. 152, note 1.]

[Sidenote: Gradual Recognition of the Freedom of the Open Sea.]

-- 251. In spite of opposition, the work of Grotius was not to be undone. All prominent writers of the eighteenth century take up again the case of the freedom of the Open Sea, making a distinction between the maritime belt which is to be considered under the sway of the littoral States, and, on the other hand, the High Seas, which are under no State's sovereignty. The leading author is Bynkershoek, whose standard work, "De dominio maris," appeared in 1702. Vattel, G. F. de Martens, Azuni, and others follow the lead. And although Great Britain upheld her claim to the salute due to her flag within the "British Seas"

throughout the eighteenth and at the beginning of the nineteenth century, the principle of the freedom of the Open Sea became more and more vigorous with the growth of the navies of other States; and at the end of the first quarter of the nineteenth century this principle became universally recognised in theory and practice. Great Britain silently dropped her claim to the salute due to her flag, and with it her claim to maritime sovereignty, and became now a champion of the freedom of the Open Sea. When, in 1821, Russia, who was then still the owner of Alaska in North America, attempted to prohibit all foreign s.h.i.+ps from approaching the sh.o.r.e of Alaska within one hundred Italian miles, Great Britain and the United States protested in the interest of the freedom of the Open Sea, and Russia dropped her claims in conventions concluded with the protesting Powers in 1824 and 1825. And when, after Russia had sold Alaska in 1867 to the United States, the latter made regulations regarding the killing of seals within Behring Sea, claiming thereby jurisdiction and control over a part of the Open Sea, a conflict arose in 1886 with Great Britain, which was settled by arbitration[493] in 1893 in favour of the freedom of the Open Sea.

[Footnote 493: See below, -- 284.]

II

CONCEPTION OF THE OPEN SEA

Field, article 53--Westlake, I. p. 160--Moore, II. -- 308--Rivier, I. pp. 234-235--Pradier-Fodere, II. No. 868--Ullmann, -- 101--Stoerk in Holtzendorff, II. p. 483.

[Sidenote: Discrimination between Open Sea and Territorial Waters.]

-- 252. Open Sea or High Seas[494] is the coherent body of salt water all over the greater part of the globe, with the exception of the maritime belt and the territorial straits, gulfs, and bays, which are parts of the sea, but not parts of the Open Sea. Wherever there is a salt-water sea on the globe, it is part of the Open Sea, provided it is not isolated from, but coherent with, the general body of salt water extending over the globe, and provided that the salt water approach to it is navigable and open to vessels of all nations. The enclosure of a sea by the land of one and the same State does not matter, provided such a navigable connection of salt water as is open to vessels of all nations exists between such sea and the general body of salt water, even if that navigable connection itself be part of the territory of one or more littoral States. Whereas, therefore, the Dead Sea is Turkish and the Aral Sea is Russian territory, the Sea of Marmora is part of the Open Sea, although it is surrounded by Turkish land and although the Bosphorus and the Dardanelles are Turkish territorial straits, because these are now open to merchantmen of all nations. For the same reason the Black Sea[495] is now part of the Open Sea. On the other hand, the Sea of Azoff is not part of the Open Sea, but Russian territory, although there exists a navigable connection between it and the Black Sea. The reason is that this connection, the Strait of Kertch, is not according to the Law of Nations open to vessels of all nations, since the Sea of Azoff is less a sea than a mere gulf of the Black Sea.[496]

[Footnote 494: Field defines in article 53: "The High Seas are the ocean, and all connecting arms and bays or other extensions thereof not within the territorial limits of any nation whatever."]

[Footnote 495: See above, -- 181.]

[Footnote 496: So say Rivier, I. p. 237, and Martens, I. -- 97: but Stoerk in Holtzendorff, II. p. 513, declares that the Sea of Azoff is part of the Open Sea.]

[Sidenote: Clear Instances of Parts of the Open Sea.]

-- 253. It is not necessary and not possible to particularise every portion of the Open Sea. It is sufficient to state instances which clearly indicate the extent of the Open Sea. To the Open Sea belong, of course, all the so-called oceans--namely, the Atlantic, Pacific, Indian, Arctic, and Antarctic. But the branches of the oceans, which go under special names, and, further, the branches of these branches, which again go under special names, belong likewise to the Open Sea. Examples of these branches are: the North Sea, the English Channel, and the Irish Sea; the Baltic Sea, the Gulf of Bothnia, the Gulf of Finland, the Kara Sea,[497] and the White Sea; the Mediterranean and the Ligurian, Tyrrhenian, Adriatic, Ionian, Marmora, and Black Seas; the Gulf of Guinea; the Mozambique Channel; the Arabian Sea and the Red Sea; the Bay of Bengal, the China Sea, the Gulf of Siam, and the Gulf of Tonking; the Eastern Sea, the Yellow Sea, the Sea of j.a.pan, and the Sea of Okhotsk; the Behring Sea; the Gulf of Mexico and the Caribbean Sea; Baffin's Bay.

[Footnote 497: The a.s.sertion of some Russian publicists that the Kara Sea is Russian territory is refuted by Martens, I. -- 97. As regards the Kara Straits, see above, -- 194.]

It will be remembered that it is doubtful as regards many gulfs and bays whether they belong to the Open Sea or are territorial.[498]

[Footnote 498: See above, -- 191.]

III

THE FREEDOM OF THE OPEN SEA

Hall, -- 75--Westlake, I. pp. 160-166--Lawrence, -- 100--Twiss, I.