The Freedom of the Seas Doctrine - Essay Example

SHIPPING LAW Define the Freedom of the Seas Doctrine and its extent - and limitations - as provided under modern international law. "Every nation isfree to travel to every other nation and to trade with it" said Grotius. Under this broad principle of international law the seas beyond the three mile limit are open on equal terms to ships of every nation. But this law is if unlimited application only during times of peace; in times of war belligerents have certain rights of interference with trade, such as blockade, visit and search, and seizure of contraband ("Freedom of the Seas",14). According to the US History Encyclopedia, Freedom of the Seas is a principle that governs unrestricted access to the high seas and to waters outside of national territory. It is the right of all peoples to travel unmolested in international waters in both war and peace. Historically, it has been one of the chief means by which the United States has influenced international affairs; the vigorous assertion of the principle of freedom of the seas has been a major cause of four armed conflicts: the Quasi-War with France in 1798, the Barbary Wars, the War of 1812, and World War I. First established by the Romans, it was challenged in the sixteenth century to secure trade and by a Papal Bull that sought to divide the oceans between Portugal and Spain. During the eighteenth century, the principle again became widely accepted when the definition of territorial waters was extended to include a three-mile zone. While the United States strongly took the position that neutral ships should be allowed to carry goods for belligerents in times of war, other nations enforced rules of contraband (mostly defined as military stores) and blockade. This became an important issue during the wars after the French Revolution when Great Britain and France imposed maritime blockades. To force these nations to change their policies (and also to end British impressment on American ships), the United States passed the Embargo Act (1807) and the Nonintercourse Act (1809). After France declared it would lift its blockade, and when Great Britain did not follow suit within a three-month period as demanded by President James Madison, the United States declared war on Great Britain in June 1812. The United States accepted the concepts of contraband and blockade as legitimate during the Civil War but shied away from capturing Confederate diplomats off of neutral vessels during the Trent Affair. As long as the United States was a neutral during World War I and World War II, it protested the extensive blockades against Germany and very liberal British definitions of contraband. President Franklin D. Roosevelt, nonetheless, established "maritime control areas" at the beginning of World War II that extended into the high seas. In both wars, activities of German U-boats against neutrals provoked sharp American protest: by President Woodrow Wilson after the sinking of the Lusitania in 1915, and by Roosevelt in September 1941 after the torpedoing of American ships. The first major challenge to the freedom of the seas principle after World War II was President Harry S. Truman's 1945 announcement extending U.S. jurisdiction to natural resources on the continental shelf. Other nations followed by extending their territorial waters, some of them as far as 200 nautical miles. A 300-mile maritime defense zone around the American continents, established by the Rio Pact of 1947, was cited by the John F. Kennedy administration to legitimize the "naval quarantine" during the Cuban Missile Crisis in 1962. The Third United Nations Conference on the Law of the Sea agreed upon a 12-mile territorial limit and a 200-mile exclusive economic zone in December 1982. In 1982 a comprehensive United Nations Law of the Sea Treaty agreement was reached that established the twelve-mile limit for territorial waters and the two-hundred-mile "exclusive economic zone" that the United States had pushed for. The historic pact deemed the world's oceans the "common heritage of mankind" and represented a dramatic shift away from Grotius's notion that the seas were free owing to their boundlessness. Now the seas were understood to be a zone of interdependence in which all nations (including landlocked ones) had a stake. Although the Law of the Sea Treaty substantially affirmed American notions about the freedom of the seas, the administrations of Ronald Reagan and George H. W. Bush refused to sign it because of restrictions it placed on private enterprise regarding deep seabed mining. In July 1994 the Clinton administration, after negotiations leading to the modification of the deep seabed mining provisions, signed the pact; the Senate, however, perceiving that the treaty still hindered the U.S. freedom of action on the high seas, refused to provide the two-thirds majority needed to ratify it. As of 2001 the United States was not a signatory to the treaty, which went into effect on 16 November 1994 after ratification by sixty nations. The expansion of territorial waters and exclusive economic zones by many nations since World War II encouraged some states to restrict in various ways free passage on the high seas, a phenomenon known as "creeping sovereignty." To resist what American diplomats termed the "excessive maritime claims" of certain states, the United States instituted in 1979 a freedom of navigation policy designed to assert its historic commitment to a broad definition of freedom of the seas. This policy aimed to meet encroachments on the right of passage either by sea or air by a three-pronged strategy of diplomatic protest, operational assertion, and bilateral or multilateral negotiation. The operational assertion part of the policy resulted in several high profile incidents including challenging in 1986 Libya's claim that the Gulf of Sidra was a historic inland sea subject to its complete control and the 1988 bumping of U.S. warships by Soviet naval vessels while exercising the right of "innocent passage" inside the twelve-mile territorial limit in the Black Sea. In 1989 the latter incident resulted in a joint statement signed by Secretary of State James A. Baker and Soviet foreign minister Eduard Schevardnadze affirming the right of American warships to conduct innocent passage through Soviet territorial seas. For more than two hundred years, from the very beginning of the Republic, the tendency of American policy has been to enlarge rather than to restrict the rights of nations on the seas-that is, except in certain periods when the country was at war and the national interest dictated the extension of American rights at the expense of other nations. The determination and consistency with which the principle of freedom of the seas has been asserted is testimony to its central importance in the history of American foreign policy. It represents the effort to extend American notions of international law and universal human rights to the oceans of the world. It constitutes a massive de facto extension of American sovereignty to the watery borders of all nations. And throughout the nation's history and into the foreseeable future it has been and will be job of the U.S. Navy to enforce the principle of freedom of the seas. ("freedom of seas",1). Put yourself in the position of the lawyer advising Odyssey Marine Exploration, and advise them on the merits of any claim which they may have against the Spanish government. Any lawyer representing/advising Odyssey Marine Exploration can file in the following claims against the Spanish Government: It is mainly a case of "finder's keepers", and as the treasure was recovered in conformity with "Law of Finds" and the "Law of the Sea Convention", beyond the territorial waters or legal jurisdiction of any country. The Company can therefore claim that the recovery is NOT subject to sovereign immunity by any nation pursuant to the Law of the Sea Convention ("Odyssey's latest shipwreck", 134). For as long as people have had the means to explore shipwrecks, the maritime "law of finds" has held sway. If one found a wreck, one was welcome to it and anything it held. For one thing, he/she got there first. For another, who was going to stop him/her For a third, if one was lucky, admiralty courts -- those that deal with maritime law -- might even back one up (Tyson, 1). If the Spanish Government or the English Government (depending on the wreck's exact location) is by any chance able to prove that the recovered ship was NOT abandoned, even then under the "Law of Salvage" Odyssey can claim a portion of the treasure as compensation for services rendered as the salvage law, originally designed to encourage ships to come to the aid of other ships in distress -- and any people or property they hold -- offers salvors compensation for services rendered that is whether aiding a stricken vessel or salvaging an historic shipwreck. Moreover, Gibraltar officials and Odyssey Marine Exploration, which owns the ship (The Ocean Liner) that was seized, can claim that Spain had boarded the ship illegally as it was in international waters. This move goes against the "Freedom of the Seas Doctrine". Spain had at first promised that the ship would be searched at sea, but later they went against their word and seized the ship. Odyssey can also seek compensation from Spain for revenues lost because of the kingdom's intervention in its activities. What do you expect the priorities of Odyssey Marine Exploration to be in this matter, and how do you feel that proceedings against the Spanish government might serve those priorities The priorities of Odyssey Marine Exploration at this point would be: To claim as much as possible of the haul as their own as the cost of the exploration is as high as about a 50,000 pounds a day ("Treasure trove", 6672725). To achieve this end they need to prove that the ship was abandoned so that they can claim the right of ownership as well as the right of possession, under the "Law of Finds". Even if another entity is able to prove that it has an ownership interest in the shipwreck and/or cargo and that they had not legally abandoned the shipwreck, Odyssey needs to apply for a salvage award from the Admiralty Court as in cases such as this, salvors are typically awarded up to 90% of the recovery ("Form 10-Q", 70809). Moreover, they need to get this case settled under the U.S. federal law where previous judgments have sometimes granted exclusive rights to salvors. Odyssey needs to recover the losses they have sustained due to Spain's interference and their attempt to obstruct Odyssey's ability to conduct operations, so in this regard they should seek not only relief in the form of a set-off of any potential award Spain may ultimately receive, but also affirmative relief for damages caused by Spain's interference with Odyssey's rights to all three arrested sites. In accordance with their previous stance of not disclosing the possible identity and location of the shipwreck in order to protect it from looters, Odyssey needs to file Motions for Protective Order to protect the confidentiality of the Preliminary Site Assessments, which include detailed information about the archaeological and exploration activities at the sites to date. What solution would you propose which might best serve those priorities In order to get a massive share in the recovered treasure well in proportion with the costs incurred during the recovery operation, Odyssey needs to start legal proceedings, preferably in their home turf and under the U.S. federal law. It needs to prove that the ship was abandoned by Spain, in order to claim ownership of the treasure according to the "Law of Finds". Moreover, Odyssey needs to protect the location and identity of the shipwreck and should file Motions for Protective Order in order to protect the confidentiality of the site assessment. They should undertake proper legal proceedings in order to recover the losses due to Spain's interference in their operations. Works Cited "Form 10-Q for Odyssey Marine Exploration Inc." Yahoo! Finance. 9 Aug. 2007. 29 Nov. 2007 < http://biz.yahoo.com/e/070809/omex10-q.html> "Freedom of the Seas." The New York Times. 29 Nov. 2007. 29 Nov. 2007 "freedom of seas." Answers.com. 29 Nov. 2007 < http://www.answers.com/topic/freedom-of-the-seas.> "How to find a Treasure Trove."BBC News. 19 May 2007. 29 Nov. 2007 "Odyssey's Latest Shipwreck Find Yields Over 500,000 Silver And Gold Coins" Odyssey Marine Exploration. 29 Nov. 2007 < http://www.shipwreck.net/pr134.html.> Tyson, Peter. "Who owns Lost Ships." Voyage of Doom. 29 Nov. 2007 Read More