pay £30,000 as the price for the indulgence.1 Again, when Philip II. of Spain was in 1554 on his way to England to marry Queen Mary, the British admiral, who met him in the British Seas,' fired on his ship for flying the Spanish flag. And the King of Denmark, when returning from a visit to James I. in 1606, was forced by a British captain, who met him off the mouth of the Thames, to strike the Danish flag. Expres Maritime reignty. § 249. Maritime sovereignty found expression in Practical maritime ceremonials at least. Such State as claimed sovereignty over a part of the open sea required foreign Claims to vessels navigating that part to honour its flag2 as a Sovesymbol of recognition of its sovereignty. So late as 1805 the British Admiralty Regulations contained an order to the effect that when any of His Majesty's ships shall meet with the ships of any foreign Power within His Majesty's seas (which extend to Cape Finisterre), it is expected that the said foreign ships do strike their topsail and take in their flag, in acknowledgment of His Majesty's sovereignty in those seas; and if any do resist, all flag officers and commanders are to use their utmost endeavours to compel them thereto, and not suffer any dishonour to be done to His Majesty.' But apart from maritime ceremonials, maritime sovereignty also found expression in the levying of tolls from foreign ships, in the interdiction of fisheries to foreigners, and in the control, or even the prohibition, of foreign navigation. Thus Portugal and Spain attempted, after the discovery of America, to keep foreign vessels altogether out of the seas over which they claimed sovereignty. The magnitude of this claim created an opposition to the very existence of such rights. English, French, and Dutch explorers and traders navigated on This and the two following examples are quoted by Hall, § 40. See Fulton, The Sovereignty of Attack on the Indian Ocean and the Pacific, in spite of the Spanish and Portuguese interdictions. And when, in 1580, the Spanish ambassador Mendoza lodged a complaint with Queen Elizabeth against Drake for having made his famous voyage to the Pacific, Elizabeth answered that vessels of all nations could navigate on the Pacific, since the use of the sea and the air is common to all, and that no title to the ocean can belong to any nation, since neither nature nor regard for the public use permit any possession of the ocean.1 Grotius' § 250. Queen Elizabeth's attitude was the germ out Maritime of which grew gradually the present freedom of the reignty. open sea. Twenty-nine years after her answer to Sove Mendoza, in 1609, appeared Grotius' short treatise 2 Mare liberum. His intention was to show that the Dutch had a right of navigation and commerce with the Indies, in spite of the Portuguese interdictions. He contended that the sea cannot be State property, because it cannot really be taken into possession through occupation,3 and that consequently the sea is by nature free from the sovereignty of any State. The attack of Grotius was met by several authors of different nations. Gentilis defended Spanish and English claims in his Advocatio Hispanica,5 which appeared, after his death, in 1613. Likewise, in 1613, William Welwood defended the English claims in his book, De Dominio Maris. John 1 See Walker, History, i. p. 161. It is obvious that this attitude of Queen Elizabeth was in no way the outcome of the conviction that really no State could claim sovereignty over a part of the open sea. For she herself did not think of dropping the British claims to sovereignty over the British Seas.' Her arguments against the Spanish claims were made in the interest of the growing commerce and navigation of England, and any one daring to apply the same arguments against England's claims would have incurred her royal displeasure. 2 Its full title is: Mare liberum seu de Jure quod Batavis competit ad indicana Commercia Dissertatio, and it is now proved that this short treatise is only chapter 12 of another work of Grotius, De Jure Praedae, which was found in manuscript in 1864 and published in 1868. See above, § 53. 3 See below, § 259. 4 Grotius was by no means the first author who defended the freedom of the sea. See Nys, Les Origines du Droit international, pp. 381 and 382. See Abbott in A.J., x. (1916), pp. 737-748. Selden wrote his Mare clausum sive de Dominio Maris in 1618, but it was not printed until 1635. Sir John Buroughs wrote in 1633 his book, The Sovereignty of the British Seas proved by Records, History, and the Municipal Laws of this Kingdom, but it was not published until 1651. In defence of the claims of the Republic of Venice, Paolo Sarpi published in 1676 his book Del Dominio del Mare Adriatico. The most important of these books defending maritime sovereignty is that of Selden. King Charles I., by whose command Selden's Mare clausum was printed in 1635, was so much impressed by it that, through his ambassador in the Netherlands, he complained of the audacity of Grotius and requested that the author of the Mare liberum should be punished.1 The general opposition to the bold attack of Grotius on maritime sovereignty prevented his immediate victory. Too firmly established were the claims then recognised to sovereignty over certain parts of the open sea for the novel principle of the freedom of the sea to supplant them. Progress was made regarding one point only-namely, freedom of navigation of the sea. England had never pushed her claims so far as to attempt the prohibition of free navigation on the so-called British Seas. And although Venice succeeded in keeping up her control of navigation on the Adriatic till the middle of the seventeenth century, it may be said that in the second half of that century navigation on all parts of the open sea was practically free for vessels of all nations. But with regard to other points, claims to maritime sovereignty continued to be kept up. Thus the Netherlands had by Article 4 of the Treaty of Westminster, 1674, to acknowledge that their vessels had to salute the British flag within the British Seas as a recognition of British maritime sovereignty.2 See Hall, § 40, p. 149, n. 4. 1 See Phillimore, i. § 182. Gradual Recogni of the § 251. In spite of opposition, the work of Grotius tion of the was not to be undone. All prominent writers of the Freedom eighteenth century took up again the case of the freedom Open Sea. of the open sea, making a distinction between the maritime belt which is to be considered under the sway of the littoral States, and the high seas, which are under no State's sovereignty. The leading author was Bynkershoek, whose standard work, De Dominio Maris, appeared in 1702. Vattel, G. F. de Martens, Azuni, and others followed the lead. And although Great Britain upheld her claim to the salute due to her flag within the 'British Seas' throughout the eighteenth and at the beginning of the nineteenth centuries, the principle of the freedom of the open sea became more and more vigorous with the growth of the navies of other States; and at the end of the first quarter of the nineteenth century it became universally recognised in theory and practice. Great Britain silently dropped her claim to the salute, and with it her claim to maritime sovereignty, and she became now a champion of the freedom of the open sea. When, in 1821, Russia, which then still owned Alaska in North America, attempted to prohibit all foreign ships from approaching within one hundred Italian miles of the shore of Alaska, Great Britain and the United States protested in the interest of the freedom of the open sea, and Russia dropped her claims in conventions concluded with the protesting Powers in 1824 and 1825. Moreover, when, after Russia had sold Alaska in 1867 to the United States, the latter made regulations regarding the killing of seals within Behring Sea, claiming thereby jurisdiction and control over a part of the open sea, a conflict arose in 1886 with Great Britain, which was settled by arbitration 1 in 1893 in favour of the freedom of the open sea. 1 See below, § 284. II CONCEPTION OF THE OPEN SEA Field, Article 53-Westlake, i. p. 164-Moore, ii. § 308-Rivier, i. pp. 234235-Pradier-Fodéré, ii. No. 868-Ullmann, § 101-Stoerk in Holtzendorff, ii. p. 483. nation and Terri Waters. § 252. The open sea or the high seas1 is the coherent Discrimibody of salt water all over the greater part of the globe, between with the exception of the maritime belt and the terri- Open Sea torial straits, gulfs, and bays, which are parts of the torial sea, but not parts of the open sea. Wherever there is a salt-water sea on the globe, it is part of the open sea, provided it is not isolated from, but coherent with, the general body of salt water extending over the globe, and provided that the salt-water approach to it is navigable and open to vessels of all nations. The enclosure of a sea by the land of one and the same State does not matter, provided such a navigable connection of saltwater as is open to vessels of all nations exists between such sea and the general body of salt water, even if that navigable connection itself be part of the territory of one or more littoral States. Whereas, therefore, in 19142 the Dead Sea was Turkish and the Aral Sea was Russian territory, the Sea of Marmora was part of the open sea, although surrounded by Turkish land, and although the Bosphorus and the Dardanelles were Turkish territorial straits, because these were open to merchantmen of all nations. On the other hand, the Sea of Azoff was not part of the open sea, but Russian territory, although there existed a navigable connection between it and the Black Sea. The reason was that this connection, the 1 Field defines in Article 53: 'The high seas are the ocean, and all connecting arms and bays or other extensions thereof, not within the territorial limits of any nation whatever.' 2 The Turkish settlement was still under consideration when this volume went to press. No progress had been made with the settlement of Russia. See above, § 197. |