Grotiuss Concept of Mare Liberum - Essay Example

Despite mare liberum as advocated by Hugo Grotius, in reality High Seas freedoms have been diminished legally by Article 76 UNCLOS III”. Discuss. Introduction For at least 400 years the law of the sea was based on international customary law and in particular on the concept of mare liberum as advocated by Dutch jurist Hugo Grotius.1 Grotius distinguished between the “inner sea” which was essentially landlocked and the “outer sea” which could not be “seized or enclosed”.2 Grotius argued that no state could claim sovereignty over the outer seas and this contention is arguably reflected in Article 89 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS III).3 Grotius’ mare liberum also advocates that all mankind have a natural right to navigate and fish in the outer seas.4 This right has also survived UNCLOS III.5 What has changed however, is the limits of the inner sea. By the 20th century it became obvious that given the depletion of marine resources, policing responsibilities of states and the right of states to maintain sovereignty over ships carrying their flags, there was a need to expand upon the definition of the inner sea.6 Article 76 of UNCLOS III effectively expands the inner sea of states by expanding on the dimensions of a coastal state’s continental state.7 It therefore follows that coastal states have been expanding their respective inner seas and steadily challenging the scope and range of mare liberum or freedom of the seas. For example, Ireland ratified UNCLOS III in 1996.8 Since that time Ireland’s continental shelf consist of three zones, which are either shared with other adjacent states or expanded by agreement.9 Ireland represents the consequences of the evolving international law of the sea in which states are increasingly expanding their coastal jurisdictions to include parts of the ocean once previously regarded as the outer/high seas as contemplated by Grotius’ mare liberum concept. This paper demonstrates the extent to which Article 76 of UNCLOS III has legally diminished the concept of mare liberum as advocated by Grotius. It is argued that when read together with Articles 55-75 which provides another method for the expansion of a coastal state’s coastal zone by the creation of exclusive economic zones (EEZ), the high seas are shrinking and freedom of the seas is increasingly becoming a misnomer. Grotius’s Concept of Mare Liberum Grotius claimed that the law of the sea was dictated by the laws of nature and as such: Every man is free to travel to every other nation, and to trade with it. God himself says this spellbind through the voice of nature...10 In other words, the open seas are naturally ordained method by which mankind is free to travel and to trade with one another. In justifying the concept of mare liberum, Grotius argued that just as there was property that man could possess and own exclusively: ...so has nature willed that some of the which she has created for the use of mankind remain common to all...Law moreover were given to cover both cases that all men might use common property without prejudice to anyone else, and in respect to other things so that each man being content with what he himself owns might refrain from having his hands on the property of others.11 Grotius argued that natural parts of the earth have not and cannot be appropriated and as such may not become individual property or the property of states. These parts of the earth must be used by all of mankind and by all sovereign states with no exclusive right to possession. In addition nature dictates that nothing goes to waste and as such no man or state should be at liberty to stake a claim that which exceeds usage capacity.12 Specifically, Grotius argued that air is common property and cannot exclusively be used by one person or state to the exclusion of all others. This is because air cannot be occupied, a primary requisite for something to be noted as private property. In addition, air is a common commodity intended for usage by all of mankind. Grotius went on to state: For the same reason, the sea is common to all, because it is so limitless that it cannot become a possession of any one, and because it is adapted for the use of all, whether we consider from the point of view of navigation or of fisheries.13 Grotius also envisioned a particularly narrow coastal zone. While arguing that just as the sea can never be granted private property status, Grotius argued that the coastal area can only be granted private property status if it can be occupied. Even then, occupation and private ownership cannot be the obtained if the occupant’s possession interferes with the common usage of the shore.14 The principle of mare liberum as advocated by Grotius set very narrow parameters for departure from the doctrine of terra nullius. The doctrine of terra nullius translates to mean “land of no one” and in that regard, a terra nullius cannot be claimed exclusively by individuals or states and “its use is open to all”.15Grotius was not without his critics and a counter-argument advanced by Serafim de Freitas a Portuguese friar and John Selden, a British publicist advanced the principle of mare clausum which drew attention to “closed seas”.16 In the counter-arguments advanced by Freitas and Selden it was suggested that history has informed that sovereigns may establish a degree of control and possession over coastal areas and thus parts of the sea. Freitas argued that any natural law dictating freedom of the seas could be significantly modified at the “whim of a sovereign”.17 In defiance of the concept of mare liberum as advocated by Grotius, the British during James I’s reign widely practiced the concept of mare clausum by issuing proclamations essentially claiming exclusive access to the fishing grounds along both British and Irish coasts and prohibited access to any foreign vessel that did not first obtain a fishing license from the UK.18 However, despite the “intellectual debate”, imperialism, global trade and international politics fell on the side of Grotius’ mare liberum principle and thus the doctrine of mare liberum became established as customary international law until the 1950s.19 By the 1950s, conflicts over appropriate sea boundaries, marine resources together with “new human demands and technologies” gave way to a need to negotiate a new international legal framework for regulating the open seas.20 The subsequent UNCLOS III was therefore constructed around the concept that there was a need for: A consensus-based framework that, at its heart, provided coastal States with extended, but limited, jurisdiction, while providing that the seabed and its resources beyond were to peaceable and sustainably benefit all as the ‘common heritage of mankind’.21 The main issue was therefore whether or not the open seas were properly common territory for all states and individuals to use, or whether or not some parts of the open seas could become sovereign claims.22 The resulting UNCLOS III can be seen as deciding to leave the debate unresolved for the most part, but has succeed in widening the scope of sovereign territorial claims and thereby diminishing the Grotius’ mare liberum principles23. A closer examination of UNCLOS III and in particular Article 76 bears this out. UNCLOSS III and Mare Liberum The doctrine of mare liberum was for the most part retained by UNCLOS III, however, within the framework of UNCLOS III, the narrow confines of coastal states as contemplated by the doctrine of mare liberum has been widened. UNCLOS III was implemented in 1982 and came into effect in 1994. It provides an international legal instrument regulating all ocean and sea activities. Even states that did not ratify UNCLOS recognize it as a source of customary international law relative to maritime activities.24 Article 76 of UNCLOS III provides as follows: (1) The Continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical mile from the baselines from which the breadth of the territorial sea is measured where the out edge of the continental margin does not extend up to that distance. (2) The fixed points comprising the line of the outer limits of the continental shelf of the sea-bed, drawn in accordance with paragraph [4 (a)], either shall not exceed 350 nautical miles.25 According to Abass, the issue of the proper boundaries of a coastal state’s continental shelf had become a particularly contentious “issue since 1958”.26 UNCLOS III, Article 76 dealt with this rather contentious issue by utilizing a complicated “formula” that purports to balance as opposed to constrain the coastal state’s continental shelf “to the extent of the natural prolongation of a State’s territorial sea” and Article 76 makes a connection between the “natural prolongation to the outer edge of the continental margin” or put another way, “to a distance of 200 miles from the baselines from which the territorial water of a state is measured”.27 Moreover, Article 76 of UNCLOS III confers upon coastal states the right to expand the parameters of their respective continental shelves up to at 350 nautical miles.28 Article 76(8) provides that where a coastal states wishes to extend their respective continental shelves beyond the 200 nautical miles, information substantiating the intention to extend the continental shelf: Shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf...on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf.29 Arguably, Article 76 was merely recognising a developing trend in which the doctrine of mare liberum was being diminished in practice. For example, in Ireland’s submission to the Commission via Article 76 of UNCLOS III it was established that since establishing a limited continental shelf in 1968, Ireland’s continental shelf has been gradually expanding by agreement with overlapping coastal states. The most recent expansion submitted to the Commission was necessitated because there was an inability to obtain agreement with a number of overlapping states.30 However, the outcome of Ireland’s submission to the Commission is unknown since its recommendations which are designed to expand the coastal state’s continental shelf are not a matter of public record.31 The cumulative result of UNCLOS III and domestic security issues including the need to govern piracy on the high seas, protect the environment and to benefit from marine resources such as oil and fish, is that coastal states are progressively expanding the limits of their respective coastal territories. As the US Commission on Ocean Policy reports: Although invisible to the naked eye, governments have carved the world’s oceans into many zones, based on both international and domestic laws.32 Article 82(1) of UNCLOS III motivates states to extend their continental shelves beyond the 200 nautical miles as provided for under Article 76. Article 82(1) provides that: The coastal State shall make payments or contributions in kind in respect of the nonliving resources of the continental shelf beyond the 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.33 It is therefore hardly surprising that coastal states are seeking to expand their continental shelves beyond the 200 nautical miles parameters. This is particularly important to an island nation such as Ireland which will have responsibilities for the entire baselines surrounding its territory. Arguably, Ireland would want to take the benefits as opposed to taking only the burdens imposed by Article 82(1) of UNCLOS III. Article 77 of UNCLOS III provides a further incentive for coastal states to expand upon their 200 nautical miles of continental shelf. Article 77 provides that has “sovereign rights” with respect to its continental shelf “for the purpose of exploring it and exploiting its natural resources.”34 Obviously, the coastal state will want to direct and regulate how those resources will be exploited and explored and will want to exclude certain participants and practices. Thus Article 77 of UNCLOS III tips the balance in favour of the doctrine of mare clausum and significantly diminishes Grotius’ doctrine of mare liberum which essentially argues that states may not exercise sovereign claims over the outer seas. Grotius had specifically argued that only a very narrow scope of inner sea would be claimed and even then, jurisdiction over the inner sea would be entirely limited. Article 77 of UNCLOS III together with Article 76 specifically broadens the scope of the inner sea and in doing so severely diminishes Grotius’ concept of the open seas and limited jurisdictional claims on the part of sovereign states. Article 77(2) goes even farther in strengthening jurisdictional claims by sovereign states and diminishing Grotius’ claim of mare liberum. Article 77(2) provides that: The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.35 Article 77(2) therefore directly contradicts Grotius’ mare liberum rationale. It will be recalled that Grotius argued that the sea was open for use by all of mankind and sovereign claims would be limited on the basis that no state should be allowed to claim more than it can use. Article 77(2) specifically states that a coastal state may claim more that it can use, by providing that should the coastal state decide not to use the extended parameters of its continental shelf and the resources contained in it, no other state may claim those resources without the express permission of the coastal state. In further defiance of Grotius claim that the outer sea cannot be claimed by a sovereign or an individual because it cannot be possessed or occupied, Article 77(3) provides that: The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.36 In other words, contrary to Grotius’ claims, UNCLOS has legalized exclusive possession of common sea by allowing states to make a claim without the necessity of proving its possession by occupation, a requisite for evidence of possessory claims, according to Grotius. Although UNCLOS attempts to limit the jurisdiction of coastal states by taking account of moving marine life that come from adjacent waters, and states’ rights to use and lay pipelines and cables37, Article 81 again vest authoritative and regulatory control in the coastal state by providing that: The coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes.38 Again there is a departure from Grotius’ idea of mare liberum in which the idea of a state maintaining exclusive control of any part of the sea to which other states may necessarily have access to, is a recurrent theme in UNCLOS III. It will be recalled that Grotius’ mare liberum only permitted claims to inner seas insofar as it did not interfere with the rights of others to use it. This was according to Grotius, a naturally ordained law. The practice of claiming exclusive fishing and economic zones also contributed to a defiance of Grotius’ mare liberum arguments. Even before the implementation of UNCLOS I in 1958, a number of states commenced claims to an expanded area of continental shelf in excess of the accepted size as their exclusive fishing and economic zones (EEZ). There was a significant concern about the incidents of exploitation of marine life, damages to the ecosystem and incidents of piracy. As a result, affected coastal states routinely claimed 200 nautical miles of EEZs. This practice began at a time when it was thought, based on the doctrine of bare liberum that a coastal state’s claim to territorial shorelines could only extend to three miles off-shore.39 The EEZ is firmly established and legalized by Article 55 of UNCLOS III which provides as follows: The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in the Part...under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.40 Article 57 provides however, that the EEZ may not exceed 200 nautical miles out to sea from the shoreline.41 Regardless, the legalizing of the practices of establishing EEZs provides another method by which Grotius’ mare liberum has been diminished and provides yet another method by which coastal states may claim a larger share of the open sea. Even so, UNCLOS III provides that the open seas “cannot in whole or in part be under the sovereignty of any state or group of states.”42 This would seem to be consistent with Grotius’ mare liberum principles as Grotius argued for narrowing the inner seas and broadening the outer seas. However, as demonstrated via Article 76 and other relevant parts of UNCLOS, including the EEZ regulations, coastal states are increasingly claiming larger parts of the outer sea by taking advantage of the right to extend their continental shelves. The EEZ claims of Ireland virtually reflect that only the narrow waters separating Ireland from England remain unclaimed. Ireland’s EEZ otherwise expands significantly farther out to the open sea (See Appendix). Conclusion Grotius’ mare liberum formed the foundation of customary international law of the sea for at least 400 years. The idea that the seas were open to all of mankind in much the same manner as the air was, appeared appealing at the time. However, over the course of those 400 years, it became increasingly clear that states’ responsibilities in terms of protection of the environment, providing economic and military environment made it entirely impractical to confine states to jurisdictional and sovereign claims over a limited scope of territorial sea. As a result, UNCLOS was implemented to correspond with realities in practice. UNCLOS III therefore effectively eroded Grotius’s mare liberum claim that states could not claim sovereignty over any part of the sea, but only in a very limited way and only to a very limited part of the shoreline. Even then, those claims would not be exclusive as they would be conditional on and subject to the right of others to use that area. UNCLOS III however, not only distanced itself from mare liberum, but effectively reversed the mare liberum principles by conferring upon states exclusive sovereignty over their coastal seas and expanding the parameters of the coastal seas to include parts of the outer sea. Appendix Ireland’s EEZ Source: Sea Around US Project. (n.d.). EEZ Waters of Ireland. http://www.seaaroundus.org/eez/372.aspx (Retrieved 19 December 2012). Bibliography Abass, A. (2012). Complete International Law. Oxford, UK: Oxford University Press. Arrow, D. W. (1984). “Seabeds, Sovereignty and Objective Regimes.” Fordham International Law Journal, Vol. 7: 169-243. Bederman, D. J. (2012). “The Sea.” In Fassbender, B. and Peters, A. (Eds.) The Oxford Handbook of the History of International Law. Oxford, UK: Oxford University Press, Ch. 15. Grotius, H. (Author) and Magoffin, R. D. D. (Translator). (1633/1916/2000). The Freedom of the Seas or the Right Which Belongs to the Dutch to Take Part in the East Indian Trade. Kitchener, Ontario: Batoche Books. Ireland: Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76, Paragraph 8 of the United Nations Convention on the Law of the Sea 1982 In Respect of the Area Abutting the Porcupine Abyssal Plain, Government of Ireland, 2005, 1-8. Ireland: Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76, Paragraph 8 of the United Nations Convention on the Law of the Sea 1982 In Respect of Hatton-Rockall Area, Government of Ireland, 2005, 1-12. Jares, V. (2009). “The Continental Shelf Beyond 200 Nautical Miles: The Work of the Commission on the Limits of the Continental Shelf and the Artic”. Vanderbilt Journal of Transnational Law, Vol. 42: 1265-1305. Petroleum Affairs Division of the Department of Communications, Marine and Natural Resources, (n.d.). 1-2. Prows, P. (2007). “Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law (and What is to Be Done About it).” Texas International Law Journal, Vol. 42: 241-309. Schrijver, N. (2007). “Natural Resource Management and Sustainable Development,” In, Weiss, T. G. (Ed.) The Oxford Handbook on the United Nations. Oxford, UK: Oxford University Press, Ch. 34. Schroder, T. (n.d.). The Law of the Sea: A Powerful Instrument. Hamburg: Maribus gGmbH: Ch. 10. Sea Around US Project. (n.d.). EEZ Waters of Ireland. http://www.seaaroundus.org/eez/372.aspx (Retrieved 19 December 2012). United Nations Convention on the Law of the Sea 1982. US Commission on Ocean Policy (n.d.). “Primer on Ocean Jurisdictions: Drawing Lines in Water.” http://www.oceancommission.gov/documents/full_color_rpt/03a_primer.pdf (Retrieved 19 December 2012). Viera, M. B. (July 2003). “Mare Liberum vs. Mare Clausum: Grotius, Freitas, and Selden’s Debate on Dominion Over the Seas.” Journal of the History of Ideas, Vol. 64(3): 361-377. Warner, R. (2009). Legal Aspects of Sustainable Development: Protecting the Oceans Beyond National Jurisdiction: Strengthening the International Law Framework. The Netherlands: Martinus Nijhoff Publishers. Read More