doctrines of “open seas” (mare liberum) and “closed seas” (mare clausum).
49 In fact,
the law of the sea has been “made, changed, challenged and remade” on the grounds
on that fundamental dichotomy.
50 Each doctrine gives birth to different principles
and different ways to see the ocean. On the one hand, the mare liberum thesis is
supported by the freedom of the seas principle, which had in Hugo Grotius its main
defender.
51 On the other, the mare clausum relies on the possibility of territorial
dominance over the seas by specific countries and was defended by authors such as
William Welwood.
52
In the early ages of the law of the sea as a discipline, one could perceive the
intimate interplay between the notions of imperium, the power to legislate and to
rule, and dominium, ownership. Since the 1700s, both concepts have been linked, at
least in the law of the sea.
53 One could only exercise the power to legislate and to
enforce if one had the rights of an owner. Hugo Grotius and Emmerich de Vattel
have pioneered in dedicating reflections to oceanic matters. While Grotius laid the
basis of the freedom of the seas’ principle, de Vattel presented the modern concept of
territorial seas, defined as jurisdictional waters, which form the territory of a state.
54
In the acclaimed works of Ulpian, the Dutch author built his central argument that
the seas are by nature “open to all”, and not just to citizens of a single state. For there
is an abyssal distinction between conceptions of the sea as a “common good”, as
opposed to the seas as “public good”. Given that the seas were common from its first
origin, it is obvious that it cannot become entirely the property of anyone by nature.
The cornerstone of four coming centuries of legal treatment of the oceans was laid,
and the principle of freedom of navigation was immediately acclaimed as the key
norm of the law of the sea.
De Vattel represented likewise a powerful voice against the ownership of the
“open seas”. In his words, “no nation has a right to take possession of the open seas
or claim the sole use of it, to the exclusion of the others”. Centuries onwards,
maritime powers such as Portugal, Spain, The Netherlands, France, England,
Canada, Russia, the United States, among others, sailed the seas with absolute
49 The two mains opposing principles may be resumed to the following: one grants state sovereignty
over a certain sea strip along the shore, and the other restricts such sovereignty and concedes
freedom of use of the high seas. The long-standing opposition between those principles prompted a
permanent balancing of interests between maritime powers and coastal nations, thus reflecting the
struggle for exercising ever greater and exclusive powers over the oceans.
50 See Pirtle (2000), p. 31.
51 Grotius (2004), p. 95.
52 The theory of the sovereignty of the sea was advanced by William Welwood, in a response to
Grotius. According to the English author, sovereignty represents a power composed of two rights:
to navigation and to fisheries. See Welwood (1613). Other authors that advanced the idea of the seas
as territory of the coastal states that could exercise authority over them were John Selden, from
Britain; Paolo Scarpi, from Venice; and Serafim Freitas, from Portugal.
53 Part of that logic still applies nowadays to the legal status of vessels in the law of the sea,
according to which coastal States shall not, in principle, exercise jurisdiction over foreign-flagged
vessels outside of the costal state’s boundaries.
54 De Vattel (1863).
98
4 Sovereignty and Jurisdiction in the Law of the Sea
49 In fact,
the law of the sea has been “made, changed, challenged and remade” on the grounds
on that fundamental dichotomy.
50 Each doctrine gives birth to different principles
and different ways to see the ocean. On the one hand, the mare liberum thesis is
supported by the freedom of the seas principle, which had in Hugo Grotius its main
defender.
51 On the other, the mare clausum relies on the possibility of territorial
dominance over the seas by specific countries and was defended by authors such as
William Welwood.
52
In the early ages of the law of the sea as a discipline, one could perceive the
intimate interplay between the notions of imperium, the power to legislate and to
rule, and dominium, ownership. Since the 1700s, both concepts have been linked, at
least in the law of the sea.
53 One could only exercise the power to legislate and to
enforce if one had the rights of an owner. Hugo Grotius and Emmerich de Vattel
have pioneered in dedicating reflections to oceanic matters. While Grotius laid the
basis of the freedom of the seas’ principle, de Vattel presented the modern concept of
territorial seas, defined as jurisdictional waters, which form the territory of a state.
54
In the acclaimed works of Ulpian, the Dutch author built his central argument that
the seas are by nature “open to all”, and not just to citizens of a single state. For there
is an abyssal distinction between conceptions of the sea as a “common good”, as
opposed to the seas as “public good”. Given that the seas were common from its first
origin, it is obvious that it cannot become entirely the property of anyone by nature.
The cornerstone of four coming centuries of legal treatment of the oceans was laid,
and the principle of freedom of navigation was immediately acclaimed as the key
norm of the law of the sea.
De Vattel represented likewise a powerful voice against the ownership of the
“open seas”. In his words, “no nation has a right to take possession of the open seas
or claim the sole use of it, to the exclusion of the others”. Centuries onwards,
maritime powers such as Portugal, Spain, The Netherlands, France, England,
Canada, Russia, the United States, among others, sailed the seas with absolute
49 The two mains opposing principles may be resumed to the following: one grants state sovereignty
over a certain sea strip along the shore, and the other restricts such sovereignty and concedes
freedom of use of the high seas. The long-standing opposition between those principles prompted a
permanent balancing of interests between maritime powers and coastal nations, thus reflecting the
struggle for exercising ever greater and exclusive powers over the oceans.
50 See Pirtle (2000), p. 31.
51 Grotius (2004), p. 95.
52 The theory of the sovereignty of the sea was advanced by William Welwood, in a response to
Grotius. According to the English author, sovereignty represents a power composed of two rights:
to navigation and to fisheries. See Welwood (1613). Other authors that advanced the idea of the seas
as territory of the coastal states that could exercise authority over them were John Selden, from
Britain; Paolo Scarpi, from Venice; and Serafim Freitas, from Portugal.
53 Part of that logic still applies nowadays to the legal status of vessels in the law of the sea,
according to which coastal States shall not, in principle, exercise jurisdiction over foreign-flagged
vessels outside of the costal state’s boundaries.
54 De Vattel (1863).
98
4 Sovereignty and Jurisdiction in the Law of the Sea