A fluid spatial domain, a unique international space.

The ocean is a unique international space, that for many centuries remain almost fully outside any national jurisdiction and still today its largest fraction (64%) remains outside national jurisdiction. The development of the ocean legal regime through the centuries is abundant in written theory and legal innovations, reflecting the evolving balance between the interests of nations, the availability of technology and the power to impose and maintain a status quo. “As early as the second century, reflecting their own position in the Mediterranean, the Romans had declared that the seas were communes omnium naturali jure, or common to all humankind”[1]. The growth in power and commerce by the mercantile-cities[2] and coastal nations made the control of coastal waters more important and states started to lay claim on the oceans. The most ambitious of these claims is that of Spain and Portugal, that in 1494 agreed in the Treaty of Tordesillas, under the authority of the Pope, to divide the whole world in two equal hemispheres, one under Portuguese dominion and the other under Spain. In fact the untenable practical situation created by these treaties, in view of the growing influence of Dutch, English and French maritime presence, fueled a vigorous discussion around the concepts of closed seas (mare clausum) and freedom of the seas (mare liberum) marking the origins of modern law of the sea. In 1602 the Dutch East India Company seized a Portuguese galleon in the Strait of Malacca, until very recently still one of the hotspots of world piracy, and the company commissioned Hugo Grotius to write a paper with the legal basis justifying that action. The famous piece “Freedom of the seas” (Mare liberum) by Grotius[3] is part of a larger opus “On the law of the spoils” (De jure praedae), that in perfect symmetry was very quickly subject to rebuttal by an English jurist, John Selden, who at the request of king James I, wrote “Mare Clausum: the right and dominion of the sea”, in defense of the British seizure of Dutch cargoes off Greenland[4]. The history of the law of the sea is long and fascinating. It is not my intention to summarize it here, but the main point is that the ocean law regime is old, has evolved and has had to adapt to the power and political realities of the times.

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[1]  Susan J.Buck 1998 “The GlobalCommons, an introduction”, Island Press, Washington D.C., page 76.

[2]  (...) “by 1269 Venice was charging tolls from all vessels in the Adriatic Sea”, Buck, loc. cit.

[3]  Grotius, Hugo 1608 “Freedom of the Seas” or “The right which belongs to the Dutch to take part in the East Indian Trade (Mare liberum). Oxford University Press, N.York [1916], Arno Press [1972].

[4]  Buck, loc. cit. 79