The freedom of navigation program: a study of the relationship between law and politics

Hastings International and Comparative Law Review

Winter 1996

*259 THE FREEDOM OF NAVIGATION PROGRAM: A STUDY OF THE RELATIONSHIP BETWEEN

LAW AND POLITICS

William J. Aceves [FNa]

Copyright © 1996 Hastings College of the Law; William J. Aceves

 I am master of the earth but the law is mistress of the sea. -- Emperor Antoninus Law without force is impotent. -- Pascal

I. Introduction

An analysis of the development of the law of the sea reveals a persistent interaction between law and politics. [FN1] Each influences the other in a relationship that began soon after mankind first looked out towards the sea.

 Maritime states have long been concerned with controlling the sea and protecting their shores. References to legal norms regulating maritime commerce and navigation can be found throughout ancient history. [FN2] These norms, however, emphasized jurisdiction ( imperium) *260 rather than ownership ( dominium). For example, the Greeks and Romans exercised limited grants of authority over maritime regions to regulate maritime commerce. [FN3]   This did not imply a right of ownership over the sea. Indeed, the Digest of Justinian stated that the sea was common to all, with reference to both ownership and use. [FN4]

 Eventually, maritime states recognized the advantages of claiming sovereignty over the waters surrounding their land territory. [FN5] A claim of territorial sovereignty allowed greater control of maritime transit, commerce, and resources. As noted by J.L. Brierly, "[a]t the dawn of international law most maritime states claimed sovereignty over certain seas; Venice claimed the Adriatic, England the North Sea, the Channel, and large areas of the Atlantic, Sweden the Baltic, and Denmark-Norway all the northern seas." [FN6] Similarly, C. John Colombos has noted that "[u]p to the end of the eighteenth century there was no part of the seas surrounding Europe free from the claims of proprietary rights by individual Powers, nor were there any seas over which such rights were not exercised in varying degrees." [FN7] Throughout this era, the maritime regions were viewed as a web stretching across the world's oceans, porous in some areas, impermeable in others.

 The most expansive claims of sovereignty were made by Spain and Portugal. By virtue of two papal bulls in 1493 and the Treaty of Tordesillas in 1494, Pope Alexander VI divided the New World between *261 Spain and Portugal. [FN8]   In 1604, the Dutch East India Company retained Hugo Grotius to challenge Portuguese claims of absolute sovereignty in the Indies and to justify Dutch access to the region. [FN9] In his celebrated treatise, Mare Liberum, Grotius defended the freedom of the seas by arguing that the sea cannot be owned. [FN10] "[T]he sea is one of those things which is not an article of merchandise, and which cannot become private property. Hence it follows, to speak strictly, that no part of the sea can be considered as the territory of any people whatsoever." [FN11] Grotius argued that state interdependence compelled unrestricted navigation, because no single nation was completely self-sufficient. [FN12]

 Following Dutch challenges to English attempts to restrict fishing off the coast of England, English and Scottish jurists presented their own legal justification for a restrictive maritime regime. In 1635, John Seldon wrote Mare Clausum in support of these restrictions on foreign *262 fishing off the English coast. [FN13] Seldon argued that the seas could become the exclusive property of coastal states