Md. Jahidul Islam
The idea of the freedom of the sea, like many other values that shaped the law of the sea today, developed in an era when Europeans were fiercely competing with one another for expansion around the world. European powers of the time tended to occupy everything they discovered. The newly discovered America, almost the whole continent of Africa, the Indian subcontinent, apart from a very few regions, and most of the land territories of the globe, were colonised by the Europeans. It is to wonder, during such a gold rush, how they agreed upon the freedom of the sea? As they were fighting amongst themselves for the exclusive occupation of territories, it only makes sense that they would do the same for the sea as well. Nevertheless, some remarkable legal discourses ensured that the sea was free. In this blog piece, I aim to explore how the freedom of the sea had evolved into an established norm during an era when colonialism was spreading across the globe.
In 1493, through the Papal Bull “Inter Caetera”, Pope Alexander VI donated all discovered or to be discovered territories to Spain and Portugal. It was issued immediately after the successful voyage of Christopher Columbus and the discovery of America. An imaginary line was drawn from pole to pole on the Atlantic Ocean. All territories to the west were given to Spain, and the rest to the east were given to Portugal. Based on the Papal Bull, Spain and Portugal claimed an exclusive right of navigating the great oceans. They promoted the principle of mare clausum or the closed sea. That means, like land, sea could be ‘under the jurisdiction of one nation’ and be completely ‘closed to other nations’. Professor Treves marks this as ‘an early and most ambitious claim to sovereignty over the sea’. However, it was not generally accepted by other thriving powers of Europe. Had it been accepted, no other European countries would have been able to expand colonies around the world other than Spain and Portugal. Hence, strong resistance to Spanish and Portuguese ambitions came from England and the Dutch Republic, which shared perhaps the same ambition but had fallen a bit behind in the exploration game. The freedom of the sea and the freedom of navigation were quintessential to explore, to expand, and most importantly, to trade.
Thomas Wemyss Fulton accounts that during the reign of Queen Elizabeth, England championed the free sea and opposed all claims of mare clausum. By the late 16th century, English vessels started navigating far across the globe for trade. However, Spain restricted England from carrying on commerce as it claimed sovereignty over the western Atlantic and the Pacific Oceans. Opposing Spanish claims, Queen Elizabeth stated that ‘the use of the sea and air is common to all; neither can any title to the ocean belong to any people or private man’ and her subjects ‘would continue to navigate the vast oceans’. As the tension of colonial ambitions and commercial interests between the two nations escalated, the Anglo-Spanish War took place from 1585 to 1604. When the Treaty of London was signed in 1604, marking the end of the war, England established itself as an emerging power, and Spain got weakened in dominance. It suffices to say that freeing the sea was crucial for England to fulfil its subsequent colonial expansions.
In 1609, Hugo Grotius published Mare Liberum (Free Sea), one of the most important works in the history of international law. Grotius was an advocate for ‘the freedom of navigation and trade’. He argued that ‘the sea must be free because, by its nature, it is not susceptible of occupation’. Grotius, perhaps, was devoted solely to advancing the interest of the Dutch Republic, but Mare Liberum acquired great fame across Europe. For other Europeans, Mare Liberum laid the rational foundation for rejecting the Papal Bull donating the sea to Spain and Portugal. Throughout the 17th century, scholars published numerous works to debate in favour and against the idea of the free sea. That is why Professor Treves terms the seventeenth century as ‘the century of the battle of books’.
The opposing arguments to Grotius mostly came from English scholars like William Welwood and John Shelden. They argued in favour of some exclusive rights of coastal States in their coastal sea, which England and some other European States had been practicing consistently. John Sheldon argued that ‘the seas, similarly to land, could be subject to occupation and control by a State’. Even in Elizabethan times, as Fulton wrote, it was a general practice that the coastal State shall enjoy autonomy and jurisdiction over ‘some small distance from [its] coast’. However, despite such rights, innocent passage was not prohibited. The English territorial sea was also open for fishing at that time, though King James later mandated a licencing system. Hence, in the development of territorial sea as a distinct area of sovereign control, we see a blend of closedness and openness juxtaposed—something which is reflected in today’s law of the sea as well. As the British were expanding colonies around the world, control over coastal seas appeared more and more beneficial to them. In fact, they controlled navigational routes like the Malacca Strait and benefitted from taxing whoever used such routes. In a subsequent and more comprehensive work, Grotius conceded that the freedom of the sea ought not be absolute. Exclusive rights can be exercised over small enclosures, bays, straits, and the part of the sea that can be seen from the shore. Grotius made it explicit that the occupation of small parts of the sea was possible while navigation can never be forbidden.
By the eighteenth and nineteenth centuries, Hugo Grotius’ propositions became the accepted norm for the law of the sea. As Bynkershoeck wrote in 1702, the sea maybe subject to occupation, but it is possessed by no one. This observation reflects very well that the law of the sea is not absolutist. The sea is open to all. While some small parts may be under sovereign control, such control cannot be restrictive to others. French jurist RJ Dupuy explained it as follows:
‘The sea has always been lashed by two major contrary winds: the wind from the high seas towards the land is the wind of freedom; the wind from the land toward the high seas is the bearer of sovereignties. The law of the sea has always been in the middle between these conflicting forces’ (Dupuy 1991).
The modern law of the sea embraces another wonderful concept, the principle of the common heritage of mankind. Unlike freedom or sovereignty, which concern individual States, the common heritage principle concerns the common interest of mankind as a whole. It includes not only the mankind of the present generation but also future generations. Professor Tanaka opines, ‘the international law of the sea is governed by three principles: the principle of freedom, the principle of sovereignty, and the principle of the common heritage of mankind’.
The law of the sea has evolved during the era of European expansion, a time when the Europeans went on to colonise most of the territories in the world. The idea of the freedom of the sea has not only developed during this era, but also become an established norm. It was made possible by some intriguing intellectual efforts. While coastal States enjoy some exclusive rights, their rights are not absolute in nature. The way the modern law of the sea does an exceptional job balancing between conflicting interests and still keeping the freedom of the sea upheld, credit must be given to the scholars who shaped it intellectually over the years.
A postscript acknowledgment must be added that the idea of the freedom of the sea was surely not invented by the Europeans. In the Indian subcontinent and Southeast Asia, the freedom of the sea had already been an established custom since the thirteenth century. RP Anand notes that the Maritime Codes of Macassar and Malacca testify to the existence of the norm in this region. Nevertheless, southern norms were subverted by the unfortunate events of colonialism.
Md. Jahidul Islam is a Lecturer at the Department of Law at Uttara University, Dhaka, Bangladesh. He can be reached at jahid.islam@uttarauniversity.
