Is the Sea Open or Closed? The Grotius-Selden Debate Renewed

Chapter 7
Is the Sea Open or Closed? The Grotius-Selden Debate Renewed

James Muldoon

The conventional histories of international law still point to Hugo Grotius (1583–1645) as the founder of international law, and his vast De Iure Belli ac Pacis (1625) remains the cornerstone of all subsequent writing on the subject.¹ Like important works in other fields, however, the De Iure Belli ac Pacis so dominates the history of international law that it has caused lawyers and scholars to neglect both the extensive tradition of legal thinking upon which Grotius built and the writings of those whose views differed from his. At one time, it was possible to reject the intellectual opponents of Grotius as narrow-minded, medieval reactionaries or thinkers whose conception of international law lacked the scope of Grotius’s work. Grotius himself contributed to these negative views of other thinkers in the international law tradition in the introduction to his major work when he denigrated the work of his predecessors, declaring that most of his predecessors “have done their work without system, and in such a way as to intermingle and utterly confuse what belongs to the law of nature, to divine law, to the law of nations, to civil law, and to the body of law which is found in the canons.” Furthermore, he argued, “What all these writers especially lacked” was “the illumination of history” to provide illustrative examples that would demonstrate the experience of other societies.²

Grotius’s judgment about his predecessors notwithstanding, his achievement would have been inconceivable without the work of those predecessors, as any careful reading of De Iure Belli ac Pacis will demonstrate. For at least 400 years before the appearance of Grotius’s work, lawyers, philosophers, and theologians had been wrestling with the issues and with the texts with which Grotius was concerned. With the voyages of Columbus, interest in Christian relations with non-Christian peoples moved from a largely speculative issue to a very practical one. What Lewis Hanke labeled “the Spanish struggle for justice in the conquest of America” generated an enormous literature about elements of international law and relations, material that Grotius knew well.3

One aspect of Grotius’s thought that has undergone re-evaluation in recent years is the discussion of the right of all men to travel across the sea in peace that he developed in his first published work on international law, the Mare Liberum (1609). Until about 50 years ago, there was little challenge to the Grotian notion that the sea was free and open to all mankind. The contrary position, that the sea or parts of it could be closed by states or other authorities claiming jurisdiction over the sea or some part of it, was seen as having been defeated by the Grotian argument. Grotius’s victory over the supporters of the defenders of the mare clausum was seen as an important element of modernity, one of the blows that struck off the chains of the medieval past. A generation ago, standard textbooks in the history of international law barely mentioned those writers who differed with Grotius on this issue.⁴ For example, one writer stated that the position of Grotius’s best-known opponent in this debate, the Englishman John Selden (1584–1654), “became the acknowledged basis of official English doctrine for more than a century. Gradually, however, Grotius’ thesis prevailed with governments and courts.”⁵ Presumably, therefore, there was no need to discuss Selden’s views at any length.

Recent experience, however, demonstrates that debate about ownership of or jurisdiction over the sea and the right of a state to limit or even forbid access to parts of the sea that it claimed to possess is not simply an historical issue that lawyers permanently solved in the seventeenth century. For the past several decades the nations of the world have been wrestling with two major issues involving owning the sea or extending jurisdiction over it.⁶ The first concerns control of the ocean fisheries. The second involves the seabed, specifically the ownership of ore-bearing nodules that litter the seabed. One of the factors that has made these issues so complex is the increasing number of states, especially the numerous states created by post-World War II decolonization, that have come to claim a voice in issues involving the sea. These states, often small, poorly organized, and without coastlines nevertheless possess juridical equality with the traditional nation-states of Europe and play an important role in the United Nations, especially in the General Assembly, where their combined voting power enables them to demand policies opposed by the older sovereign states of Europe, the traditionally recognized members of the international legal order.7 One scholar recently described these new states as “quasi-states” because they “lack the institutional features of sovereign states as … defined by classical international law.”⁸ Nevertheless, their juridical standing and their voting membership in the UN provide them with a platform for asserting a voice in the development of oceanic policy and also for claiming a share in the presumed wealth of the sea.

The first aspect of the Grotian theory of the freedom of the seas to undergo revision in the twentieth century concerned the distance into the sea over which states that border it could claim jurisdiction. Since the early eighteenth century, states had claimed jurisdiction over a zone extending three miles into the adjoining sea, a distance determined by the Dutch international lawyer Cornelius van Bynkershoeck (1673–1743) who noted that three miles was the distance that cannon could fire.⁹ This standard generally applied until 1952 when “Chile, Peru, and Ecuador proclaimed ‘sole sovereignty and jurisdiction’ over an area of the sea extending not less than 200 nautical miles from their coasts—which seemed to indicate that what they claimed was equivalent to a 200-mile territorial sea.”¹⁰ A major reason for this change was to restrict foreign access to the tuna fishing grounds, a move that angered the American fishermen who were active in that fishery. Subsequently, however, beginning in 1975 “several developed states … established their own 200-mile fisheries … the United States being among the first to do so.”¹¹ By moving to the 200-mile limit, the United States was responding to pressure exerted by fishermen in New England who were angered at the presence of large Russian and Polish factory fishing ships on the Grand Banks and the other grounds traditionally fished by New Englanders.12

The second issue that emerged in recent years to challenge the Grotian position on possession of the sea concerned the existence on the floor of the sea of “polymetallic nodules” that contained valuable ores that could be extracted.¹³ In 1965, a geologist named John Mero published a book on these nodules that attracted a great deal of attention, because he asserted that great wealth lay on the ocean floor, wealth now accessible because of advances in mining technology.¹⁴ This article attracted the attention of the ambassador of Malta to the United Nations, Arvid Pardo, who gave a speech at the UN in 1967 “calling for the recognition of the area and the limits of national jurisdiction [over the sea] and its resources as the common heritage of mankind.”¹⁵

Ambassador Pardo proposed a resolution on the future control of the sea that would replace traditional notions about freedom of the sea with what he saw as a new one that reflected current economic interests and moral values. He proposed that the sea and its bed “be used and exploited for peaceful purposes and for the exclusive benefit of mankind as a whole.” Furthermore, Pardo wanted an immediate halt to all further efforts to claim “sovereignty over the sea-bed and ocean floor” until “a clear definition of the continental shelf is formulated.”¹⁶

In effect, the ambassador was suggesting formal recognition of the corporate nature of human society so that the sea’s resources could be employed for the common good of mankind. This would benefit land-locked nations that, under traditional international law, would have no claim to the wealth of the sea. To achieve such a goal, would require reconsidering the meaning of state sovereignty and necessitate conceiving mankind as some kind of corporate whole under the jurisdiction of a supra-national authority. Ambassador Pardo was suggesting a morally-based redistributionist world order in which the sovereignty of nation-states would be subordinated to the interests of all mankind under the direction of a universally recognized authority.¹⁷

Ambassador Pardo’s proposal would overturn or at least undercut three centuries of legal thought and practice that followed the publication of Hugo Grotius’s first published work on international law, the anonymously published Mare Liberum (1609), because, if put into practice, it would put into place a universal regulatory regime over the sea of the sort that Grotius’s work rejected. Grotius favored a self-regulating regime in which the contending interests of the states involved, that is the European Christian states that were engaged in overseas expansion, would create an orderly international order. One critic labeled Grotius’s conception of world order as “Hobbesian,” emphasizing that such a self-regulating society would most likely be a highly competitive one, but, rather like the unregulated economy that Adam Smith envisioned, the competition among the states would serve to stabilize the international order.18

Explicitly, the Mare Liberum was a point-by-point rejection of the claims to universal jurisdiction that underlay Pope Alexander VI’s (1492–1503) Inter caetera and more than a hundred other bulls that various popes had issued since the early fifteenth century dealing with Portuguese and Castilian claims to islands in the Atlantic.¹⁹ These bulls had several functions. In the first place, they recorded the settlement of disputes between the rulers of the two kingdoms over the newly discovered lands. In this sense, the popes were acting as mediators in the conflicts that characterized the relations between the two kingdoms during the fifteenth century. The papal court served as a kind of international court that sought to settle conflicts between European monarchs by negotiation rather than by war.²⁰ In the second place, these bulls outlined the papacy’s responsibility for the preaching of Christianity in these new lands and the role of secular rulers in achieving that goal. By the terms of Inter caetera, the pope restricted access to the New World to the Spanish and the Portuguese in order to insure that the respective monarchs devoted some of the profits from trade with the new lands to the work of converting the inhabitants to Christianity.²¹

In a brief, emphatic, manner, Inter caetera stated papal claims to universal jurisdiction, including jurisdiction over the sea, that had a long history, reaching back to at least the thirteenth century.22 These claims were embodied in the canon law of the medieval Church, one of the legal traditions that Grotius was to disparage later in the De Iure Belli ac Pacis. The twentieth-century critique of the Grotian assertion of the freedom of the seas has, however, re-stated medieval legal arguments about possessing and regulating the seas. The observer who pointed out that Pardo was proposing “a radical reconsideration of the existing public order of the oceans” may not have appreciated exactly how radical Pardo’s proposal was.²³ His proposal for placing the sea and its bed under a UN regulatory regime suggests a secularized version of medieval papal and canonistic thought about the nature of the human community and the possibility of a just world order under papal leadership.²⁴ Grotius’s rejection of the papal claim to universal jurisdiction would no doubt therefore apply to Ambassador Pardo’s claims for the universal jurisdiction of the United Nations as well.

Furthermore, although the Mare Liberum was primarily a critique of papal claims to universal jurisdiction, it also contained a critique of narrower claims to jurisdiction over the sea, specifically the claim of James I of England (1603–1625; James VI of Scotland, 1566–1625) to possess the seas around Britain and Ireland and to have the right to limit access to them. This claim had the practical effect of limiting access to the fishing grounds around the British Isles to those licensed by the English king and also limiting the number of days that the fishery was open. The immediate object of these claims was the Dutch who for some centuries had fished in these waters without arousing criticism. By the late sixteenth century, however, English and Scottish fishermen were beginning to complain that the Dutch were driving them out of these fishing grounds and destroying their livelihood.²⁵ Given the increasing tension between the Dutch and the English over fishing rights, it is not surprising that James I saw the publication of the Mare Liberum as “a definite declaration of Dutch policy, aimed particularly at England, and acted accordingly.”²⁶ Responding to Grotius’s book, on May 6, 1609, James I issued a proclamation requiring that anyone who was not one of his “natural born subjects” must obtain a license if he wished to fish in the seas over which the kings of England claimed jurisdiction.27

James I’s policy of controlling the fishing grounds raised in turn the issue of the extent of English jurisdiction over the sea. Exactly how far did the king’s jurisdiction extend and on what legal basis did this claim rest? According to one student of the issue: “It had always been understood that for a certain distance from the shore the fishing was reserved for native fishermen, [but] the exact distance had varied considerably with varying conditions.”²⁸

Tension between the English and the Dutch about the fishery continued throughout the reigns of James I and of his son Charles I (1625–1649). One consequence of this was the publication of John Selden’s Mare Clausum in 1635 as a response to Grotius’s Mare Liberum. Selden’s work dealt not with the papal claims to universal jurisdiction and authority to control access to the sea, the major theme of Grotius’s work, but with his assertion that no one had the right to close any sea. In response to Grotius, Selden asserted that the sea could be possessed just as the land could be, and that kings and other secular rulers had the right to control the adjacent seas and to limit entry to them. Selden based this assertion on Roman law and on the historical practice of European governments. In effect, Selden recognized the claim of any ruler to exercise jurisdiction over the seas adjacent to his state. There was no need for the pope to mediate an agreement between states with competing claims to the sea, the situation that generated Inter caetera. Rather like Grotius, Selden argued that the states themselves could work out conflicts among themselves without any outside interference.

Selden’s work made two major inter-related assertions: “the one, That the Sea, by the Law of Nature or Nations, is not common to allmen, but capable of private Dominion or proprietie as well as the Land; the other, That the King of Great Britain is Lord of the Sea flowing about, as an inseparable and perpetual Appendant of the British Empire ….”²⁹ He pointed out that the sea can be mapped and divided by lines of latitude and longitude, just as the land can be mapped, so that the sea could be possessed just as the land can be. Selden’s position was an extension of the Roman Law discussion of the origin of private property. That is, Roman lawyers had distinguished between the natural law, by the terms of which there was no private property, all the goods of the earth being the communal possession of mankind, and the law of nations, that is the actual practice of men, which recognized the existence of private property.30 Selden extended the same premise to the sea, namely that while according to the natural law the sea was common to all men, nevertheless history demonstrated that man did lay claim to possess the sea and to control the exploitation of the resources found there.