International Law and Ocean Use Management

By Lawrence Juda | Go to book overview

NOTES
1
Hugo Grothis, The Freedom of the Seas: or the Right Which Belongs to the Dutch to Take Part in the East Indian Trade, translated from the Latin by Ralph van Deman Magoffin and edited with an introduction by James Brown Scott (New York: Oxford University Press, 1916). “Mare Liberum”, notes Scott, was Chapter XII of the treatise De Jure Praede.
2
C.H. Alexandrowicz has observed that “Mare Liberum” was not an academic treatise but rather was “in the nature of a lawyer’s plea relating to a particular case in which the [Dutch East India] Company was involved.” “Freitas versus Grotius,” 35 British Yearbook of International Law 162-182 (1959) at 162.
3
While it is Grotius whose name is historically associated with the modern doctrine of freedom of the seas, Gentili, in a work first published in 1588, had maintained that the sea “is by nature open to all men and its use is common to all, like that of the air. It cannot therefore be shut off by any one.” This argument follows upon the teachings of Roman writers and suggests that “whatever can be granted without inconvenience should be bestowed even upon a stranger.” Alberico Gentili, De Jure Belli Libri Tres, vol. II (London: Oxford University Press, 1933) pp. 90-91. For a concise consideration of the legal works of writers prior to Grotius on navigational freedoms, see Kenneth Simmonds, “Grotius and the Law of the Sea,” in Alfred Dufour, Peter Haggenmacher, and Jiri Toman (eds.), Grotius et l’ordre juridique international (Lausanne: Peyot Lausanne, 1985) pp. 43-48. In this essay the importance of the writer Vitoria to the shaping of Grotius’s views is stressed.

The lack of attention to the historical record by Grotius became a major point on which other classical writers attacked him. See, for example, John Selden, Of the Dominion, or, Ownership of the Sea, reprint of the 1652 edition (New York: Arno Press, 1972), and Cornelius van Bynkershoek, De Dominio Maris Dissertatio, edited by James Brown Scott, second edition, 1744 (New York: Oxford University Press, 1923). Writing in the twentieth century, Pittman Potter maintains that “as argument attempting to prove the legal validity of maritime dominion or maritime liberty in the period prior to 1650, Selden’s work is incomparably superior to that of Grotius in the opposite capacity.” Potter, The Freedom of the Seas in History, Law, and Politics (New York: Longmans, Green & Co., 1924) p. 65.

4
On this division of ocean space see H. Vander Linden, “Alexander VI and the Demarcation of the Maritime Colonial Domains of Spain and Portugal, 1493-1494,” 22 American Historical Review 1-20 (1916), and R.P. Anand, Origin and Development of the Law of the Sea (The Hague: Martinus Nijhoff, 1983) pp. 43-44. In accordance with these acts and claims Spain asserted authority over the Pacific Ocean, the Gulf of Mexico, and parts of the Atlantic while Portuguese authority was asserted over the Indian Ocean and other parts of the Atlantic, the latter claims supporting Portuguese title to Brazil.

Laurent Lucchini and Michel Voelckel underscore the significance of the Spanish and Portuguese claims, noting that Spain and Portugal not only divided the seas but also the territory discovered or to be discovered within their respective ocean zones. Further, these states claimed a monopoly on the right of maritime trade in their zones. Droit de la mer, tome I (Paris: Éditions A. Pedone, 1990) p. 19.

Prior to Grotius, Queen Elizabeth I had been a strong champion of the concept of freedom of the seas, opposing the claims of Portugal and Spain. In an exchange between the Queen and the Spanish Ambassador in 1580, Queen Elizabeth indicated that British subjects would continue to use the oceans since “the use of the sea and the air is common to all; neither can any title to the ocean belong to

-39-

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