Freedom of the Seas, Part 8
Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum
For the 17th century Mare liberum and Mare clausum were the centerpieces of the debate between advocates of exclusive and inclusive uses of ocean space. In England, Mare clausum
reigned supreme as the authority on all questions of sovereignty at
sea, although its authority on more mundane legal issues of maritime
law yielded late in that century to Charles Molloy's De jure maritime et navali, or, A Treatise of Affaires Maritime, and of Commerce (1676), which dealt with mercantile questions such as bills of exchange, insurance and maritime loans.
Molloy, Charles (1646-1690). De jure maritimo et navali (London, 1682).
This popular work went through 12 editions between 1676 and 1778.
Rare Book Collection, Lillian Goldman Law Library.
Neither Welwood nor Selden dealt decisively with the question of how
far out to sea a sovereign’s territorial sea could extend: Welwood
seemed to suggest one hundred miles, but left the issue open; Selden
finessed it entirely. In time, British maritime power rendered such
matters moot: as an old saw had it, "Britannia rules the waves – and
waives the rules."
But by the end of the century, support was growing elsewhere for
some limitation to the seaward extent of territorial waters. What
emerged was the so-called "cannon shot rule", which deferred in theory
to the idea that property rights could be acquired by actual
occupation, and in practice to the effective range of shore-based
cannon: about three nautical miles. The rule has long been associated
with Cornelis van Bijnkershoek (1673-1743), a Dutch jurist who, especially in his De dominio maris
(1702), advocated a middle ground between the extremes of Grotius and
Selden, accepting both the freedom of states to navigate and exploit
the resources the of the high seas and a right of coastal state to
assert wide-ranging rights in a thus limited territorial sea.
Bijnkershoek, Cornelis van (1673-1743). De dominio maris (The Hague, 1703).
Special Collections, Harvard Law School Library.
Viewed in historical perspective, what emerged from the 17th-century
debate were not just these two legal regimes, but a more inclusive one
– international law – to govern humanity's common interest in the use
of shared space and shared resources, interest as to which the future
may well offer exhibits of its own.
-- Notes by Edward Gordon
"Freedom of the Seas, 1609: Grotius and the Emergence of
International Law," curated by Edward Gordon and Michael Widener, is on
display October 2009 through January 2010 in the Rare Book Exhibition
Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.