If human beings react to the world as they perceive it, then perceptual changes have behavioral significance. From the time of Grotius to the beginning of the present century advances in scientific knowledge and understanding and in technological capabilities occurred which forced a reevaluation of how people thought about the world’s oceans and their resources. Not surprisingly, such a reassessment affected the evolution of the legal regime governing human use of the oceans. This chapter will consider early legal views of the ocean and the pressures which suggested the need for modifications of the prevailing international legal system.
In 1609 Hugo Grotius published his classic study “Mare Liberum,” 1 which was part of a longer work drafted as justification for the right of Dutch participation in the East Indian trade. 2 The work by Grotius was opposed to a substantial historical record of claim and practice relating to state control of large ocean areas. 3 In particular it strongly challenged the concept of the closed seas associated with the papal bull of Alexander VI, Inter Caetera of 1493, the Treaty of Tordesillas of 1494, and the claims of Portugal and Spain to hegemony over the main ocean areas of the world. 4 While having a wider historical significance, the volume by Grotius was written to address the navigational limitations enforced against the Netherlands. Not surprisingly, then, the perspective on ocean use in this work centered on the ocean as a locale for transportation.
Grotius distinguished between that which was subject to ownership and that which was not. In the first category were those things which might be “used up” or which if used become less fit for future use. But other things, which have “been so constituted by nature that although serving some one person it still suffices for the common use of all other persons,” ought to be forever subject to use by all. In this category were all things which could be used without loss to anyone else. 5 For Grotius the seas fit into this latter classification since they were basically limitless, were not susceptible to