This article has been written by Mr. Krish Vikram, a 1st year law student at Symbiosis Law School, Pune

Introduction

The majority of the world’s oceans are under the authority of any state, save for one. There are several legal regimes for various maritime zones, such as the exclusive economic zone, continental shelf, high seas, and so on. The high seas are the parts of the world’s oceans that are not within the jurisdiction of any state and are ungoverned. All states may use it. Because of their peculiar legal standing, the seabed and ocean floor are included in the idea of high seas, as can be seen in the definition. No state can claim control over any portion of the high seas. The high seas are open to both coastal and landlocked nations.

Hugo Grotius, a Dutch jurist, proposed as early as 1609 that the high seas are open to all nations in times of peace and may not be subject to state sovereignty. It was not, however, established as a tenet of international law until the nineteenth century. The freedom of the seas was intellectually linked to other 19th-century liberties, particularly laissez-faire economic philosophy, and was fiercely pushed by the great maritime and commercial powers, particularly the United Kingdom. The freedom of the high seas is currently recognized to include freedom of navigation, fishing, undersea cable and pipeline laying, and aircraft overflight.

By the second half of the twentieth century, demands by some coastal states for larger security and customs zones, exclusive offshore fishing rights, maritime resource conservation, and exploitation of resources found in continental shelves, particularly oil, had resulted in severe confrontations. The first United Nations Conference on the Law of the Sea, held in Geneva in 1958, attempted to codify maritime law but was unable to address numerous issues, including the maximum allowed breadth of territorial sea subject to national sovereignty. A second conference (Geneva, 1960) again failed to resolve this issue, and a third conference, which began in Caracas in 1973 and later convened in Geneva and New York City, began in Caracas in 1973.

The Definition of Terms 

Understanding the term “seas” is critical to grasping the concept of “freedom of the seas.” The term “seas” in this context explicitly refers to the “high seas.” The term “high seas” may have come from describing the apparent elevation of the sea’s surface as seen from the shore. It could possibly be related to the phrase “highway,” where “high” means common, open, and public. Mr. Justice Field, speaking for the court in the case of United States v. Rogers in 1893, stated that “high” can signify something regularly used by the public, such as highways, ways, or navigable rivers. Using this definition, a wide expanse of navigable water beyond the naked eye’s measurement, open and unconfined, not under the exclusive jurisdiction of any single government but functioning as a free passage for adjacent nations or peoples, falls under the meaning of “high seas” in legal parlance.

Since the days of Bynkershoek (1702), it has been generally accepted that each nation has the right to exercise jurisdiction over the seas around its territory to the limit of three nautical miles. Other nations’ vessels enjoy the right of innocent passage through this nautical region; therefore, such sovereignty is not entirely exclusive. Three miles was considered the maximum conceivable range of cannon at the time Bynkershoek published his book, but the maritime belt, which had become established by popular consensus, has not been extended with the greater range of modern cannons. The phrase “high seas” thus refers to all of the ocean beyond the three-mile barrier that is not subject to the jurisdiction of any nation.

The Origin of the Doctrine 

The concept of the freedom of the seas as we understand it today can be attributed to Hugo Grotius and his publication “Mare Liberum” in 1609. Grotius aimed to defend the Dutch right to navigate to the East Indies and engage in trade there, countering the exclusive claims of the Portuguese based on the Papal Bull of 1493. This bull drew a line through the Atlantic, granting Spain exclusive rights to the west and Portugal to the east. Grotius argued intricately, asserting that due to the vastness of the ocean, no single nation could effectively claim it. He also claimed that the ocean, being open to unlimited use, should remain perpetually accessible as it was created by nature. Grotius regarded it as an unshakable principle of the law of nations that “Every nation is free to travel to every other nation and to trade with it.” This highlights the historical demand of landlocked peoples for access to the sea.

Grotius’s principles gained widespread acceptance and formed the basis of the freedom of the seas, particularly in times of peace, which he strongly advocated for. This aspect has been long established and is rarely disputed today. However, when referring to the freedom of the seas in contemporary discussions, the focus shifts to wartime circumstances.

During wartime, customary practices have allowed belligerents certain powers on the high seas that are prohibited during peacetime. These include the rights to capture enemy vessels, restrict neutral trade in war-related contraband, enforce blockades, and conduct visits and searches on neutral merchant vessels. Historical disputes, such as the controversy over a belligerent’s right to confiscate enemy goods from neutral ships, were settled by the Declaration of Paris in 1856. This declaration, while marking significant progress, did not establish absolute freedom of the seas. Instead, it confirmed limitations on the rights of neutrals to trade with belligerents, outlining provisions such as the abolition of privateering and defining the conditions under which neutral flags cover enemy goods and neutral goods are exempt from capture under enemy flags.

During and Post the War

During the war, Scientific American played a vital role in educating the public about warfare’s technical aspects, explaining military technology and strategies while advocating for American self-reliance in industry due to dependence on European resources. This involved encouraging thrift and exploring alternative materials to bolster American manufacturing when European supplies were disrupted. As the conflict affected global supply chains, it also opened doors for American exports to fill the gap left by European shortages.

Transitioning post-war, Scientific American shifted focus to post-conflict reconstruction, addressing economic challenges domestically and aiding physical rebuilding abroad. Emphasizing the crucial role of science in these endeavours across various sectors, it assisted manufacturers in pivoting from wartime to peacetime production. Seeking new inventions and ideas to aid this transition became a priority for the publication. Throughout wartime and post-war periods, Scientific American remained dedicated to serving the nation, adapting its extensive scientific knowledge to meet the demands of changing times, ensuring it continued to be a valuable resource.

League of Nations and the Freedom of Seas

The League of Nations’ covenant outlines provisions in case of conflict between league members and a non-compliant state. Article 16 stipulates that a member resorting to war in violation of its commitments under Articles 12, 13, or 15 would be deemed to have committed an act of war against all other league members. These members undertake to sever trade and financial relations, prohibit intercourse between their nationals and those of the covenant-breaking state, and prevent any financial, commercial, or personal interactions between the covenant-breaking state and any other state, league member or not.

If the League’s council fails to recommend dispute settlement, the conflicting parties might engage in combat without specific rules defined in the League’s constitution. In such cases, it’s assumed that existing maritime warfare rules would apply, unless new revisions or codifications of international law occur. The aim, as implied by the League’s constitution, would be to restrict war between league members and potentially revise current maritime warfare rules. Referring back to the League’s principles, the idea of absolute freedom of navigation on the seas, except when internationally closed for covenant enforcement, is reiterated.

In a war between the League and a non-compliant member, there would be no neutrals, isolating and prohibiting interactions with the covenant-breaking state. However, in conflicts between individual league members, if the council fails to settle the dispute, neutral league members should be allowed to continue their commercial relations with the belligerents, ensuring freedom of the seas during war as well as peace.

Conclusion 

The concept of the freedom of the seas remains profoundly relevant in today’s global context. As the world grapples with evolving geopolitical dynamics and economic interdependence, the principles governing maritime freedom continue to hold immense significance. The historical evolution of this concept, from Hugo Grotius’s fundamental assertions in the 17th century to the League of Nations’ covenant in the 20th century, has shaped international relations and maritime law.

The freedom of the seas is not merely a historical idea but a dynamic principle crucial to contemporary international relations. It encompasses various aspects, including freedom of navigation, trade, undersea activities, and aircraft overflight, impacting global commerce, security, and resource exploration. As disputes arise concerning maritime security zones, resource exploitation, and territorial claims, the fundamental principles of the high seas and their freedom remain at the heart of these discussions.

In today’s world, the freedom of the seas serves as a critical framework for navigating complex geopolitical tensions, ensuring equitable access to shared resources, and fostering international cooperation. As nations continue to seek economic prosperity and navigate geopolitical challenges, the concepts espoused by Grotius centuries ago and the subsequent efforts by international bodies like the League of Nations continue to provide guidance and shape discussions on maritime rights, obligations, and governance.

The ongoing debates and negotiations regarding maritime territories, economic zones, and resource utilization underscore the enduring relevance of the freedom of the seas. While the historical context might have evolved, the core principles remain integral to addressing contemporary challenges and fostering stability and cooperation in today’s interconnected world. Therefore, understanding and upholding the freedom of the seas remains pivotal in navigating the complexities of modern global governance and ensuring a balance between national interests and international cooperation on maritime issues.

References

1. 1. United States v. Rogers, 45 U.S. (4 How.) 567

• This article was originally written by Farida Ibrahim Hasanli and published on the Scientific Network, International Scientific Journal website. The link for the same is herein. https://aem.az/uploads/files/2021-04/1619781354_elm-s-aprel-0415-oblozhka.pdf#page=406 

• This article was originally written by John H Latane and published on the Jstor website. The link for the same is herein. https://www.jstor.org/stable/pdf/1014155.pdf?refreqid=fastly-default%3Ac78ebc8feec895bcb7f42539c8d83d9f&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=search-results&acceptTC=1 

• This article was originally written by J. M. Kenworthy and G. S. Bowles and published on the Jstor website. The link for the same is herein. https://www.jstor.org/stable/pdf/742802.pdf?refreqid=fastly-default%3Ac78ebc8feec895bcb7f42539c8d83d9f&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=search-results&acceptTC=1 

• This article was originally written by Arthur H. Dean and published on the Jstor website. The link for the same is herein. https://www.jstor.org/stable/pdf/20029333.pdf?refreqid=fastly-default%3Ac78ebc8feec895bcb7f42539c8d83d9f&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=search-results&acceptTC=1 

1. This article was originally written by Ephraim P. Holmes and published on the Jstor website. The link for the same is herein. https://www.jstor.org/stable/pdf/44640095.pdf?refreqid=fastly-default%3Ac78ebc8feec895bcb7f42539c8d83d9f&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=search-results&acceptTC=1 
2. This article was originally written by Chandler P. Anderson and published on the Jstor website. The link for the same is herein. https://www.jstor.org/stable/pdf/2189746.pdf?refreqid=fastly-default%3Ac78ebc8feec895bcb7f42539c8d83d9f&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=search-results&acceptTC=1 
3. This article was originally written by Edward S Corwin and published on the Jstor website. The link for the same is herein. https://www.jstor.org/stable/pdf/25122100.pdf?refreqid=fastly-default%3Ac78ebc8feec895bcb7f42539c8d83d9f&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=search-results&acceptTC=1 
4. This article was originally written by Thorsten Kalijarvi and published on the Jstor website. The link for the same is herein. https://www.jstor.org/stable/pdf/23902030.pdf?refreqid=fastly-default%3Ac78ebc8feec895bcb7f42539c8d83d9f&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=search-results&acceptTC=1 
5. This article was originally written by Richard Webb and published on the Jstor website. The link for the same is herein. https://www.jstor.org/stable/pdf/24400713.pdf?refreqid=fastly-default%3Ac78ebc8feec895bcb7f42539c8d83d9f&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=search-results&acceptTC=1 
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