FREEDOM (?) OFTHE HIGH SEAS: SOME PRELIMINARY REMARKS ON A VENERABLE OLD CONCEPT.

• Author: Cogliati-Bantz, Vincent

I FREEDOM AS NATURAL CONDITION

Grotius was seeking a rational basis for the prohibition of the submission of the sea to sovereignty, exclusive use or control. In doing so, he drew on an impressive array of authorities. (2) The medieval and Renaissance suzerains and ingenious jurists such as Raymond V of Toulouse, Henry de Bracton or Pietro Borgo, and their baroque successors (Franciscus Seraphin de Freitas or John Selden for instance) had put forward erudite arguments in support of dominion over the sea. But Grotius justified the freedom of the seas with the impossibility, in practice, of reducing the sea to ownership since it is not occupiable ('physical reason'), and with the 'moral reason' that all things are common by nature. (3) As Aquinas and his sixteenth-century followers had done, Grotius did not expel God from natural law, but contrasted natural law with divine law: natural law rests on rational human nature in the first place, but also on concomitant divine will inasmuch as God is the creator of human rationality. (4) Unlike the land, which can be possessed by virtue of the secondary (or positive) law of nations because 'it was expedient it should be so', (5) the sea remained in original community of property, for 'by using, the sea itself is not at all impaired, and it needs no cultivation to bear fruit'. (6) Grotius equally rejected the possibility of jurisdiction (imperium) over foreign rights of navigation and trade, both of which he considered a rule of the primary law of nations (or natural law), 'the reason whereof is clear and immutable'. (7) He found it axiomatic that ownership of the sea was not necessary, but he also took pains to explain that the sea was common as a matter of the positive law of nations. (8) For Grotius, the jus gentium (earlier labelled jus gentium secundarium) fulfils an interstitial function, completing the principles of natural law by more specific regulations tacitly agreed upon by nations. (9)

While Mare Liberum had no direct effect on the claims of exclusive use over the seas when it was published in 1609, by the end of the seventeenth century 'proprietary claims over the open sea were everywhere dwindling almost to the vanishing point'. (10) This was due, in large measure, to the supremacy of maritime powers and the development of international trade and global trading networks, what Ortolan called solidarity among nations and similarity of interests, (11) although unilateral claims had not completely disappeared in the first quarter of the nineteenth century. (12)

The freedom of the high seas is mentioned in the two modern law of the sea conventions, the Convention on the High Seas ('CHS') and the United Convention on the Law of the Sea ('LOSC'), in a manner that is so self-evident that, rather than proclaiming the principle, they address its content and its exercise. (13) As such, the freedom is expressed neither as a 'rule' nor as a 'principle'. It is expressed, in part, as a collection of nominate freedoms (CHS and LOSC) and circumscribed by other 'rules' (CHS and LOSC), 'rights' (LOSC) or 'interests' (CHS and LOSC). (14) A freedom can also be the source of a permitted 'use'. (15) While the LOSC at times refers to high seas 'freedoms' or 'rights' interchangeably, (16) or in a complex relationship, (17) it also uses 'right' to connote the possibility of practical restrictions subject to change, which would not be the case with a 'freedom'. (18) A principle has been described as having a more general and more fundamental character than a rule, (19) or even something which explains or provides the reason for a rule. (20) This is perhaps why Gidel considered 'the principle of the freedoms of the seas... an axiom of peacetime international maritime law'. (21) The impossibility of occupation and exhaustion, which founded Grotius's theory of freedom is, of course, no longer tenable today. Oppenheim in 1905 found the arguments without any basis. (22) Hence Gidel, who considered that the universal acceptance of the principle of freedom is less the result of direct evidence than the lack of proof to the contrary, had elevated the assumption (Thypothese) of freedom to a principle, essentially linked, as it was, to that other assumption (which had always been accepted in international law) that States should be able to communicate freely with each other. (23) Freedom means freedom to use. While freedom of communication (with its Grotian sub-category of commerce) is undoubtedly a 20th century leitmotiv, (24) access to and uses of resources was also a ground for justifying a general principle of freedom. After all, fishing does not necessitate intercourse with any other State. Freedom on the high seas has remained because of the enduring reasons for freedom, that is, the needs that freedom satisfies; the tradition of freedom is justified by a common interest in maintaining a common space. The tenacity of the principle of freedom is most evident when it comes under attack. Thus, the Spanish institution of proceedings against Canada (filed in 1995) in the Fisheries Jurisdiction case characterised the dispute as 'going beyond the framework of fishing, seriously affect[ing] the very integrity of the mare liberum of the high seas and the freedoms thereof, a basic concept and category of the international order for centuries'. (25) More recently, the Kenyan delegate at the UN General Assembly, speaking against threats to shipping and other forms of restriction that may hamper freedom of navigation, upheld 'the mare liberiim doctrine as elaborated by Hugo Grotius'. (26) Those with a sense of history will recall that Kenya, ironically, played an important role in the historical development of the 200-mile coastal State's zone of sovereign rights over resources, by giving it its definitive name, thereby further amputating the spatial scope of the freedom of the high seas. (27) Yet, just as independence is the normal condition of States, (28) freedom remains the normal condition of the high seas.

II FREEDOM AS LEX GENERALIS

The conceptual issue with the freedom of the high seas is its open-ended nature. The concrete identification of the freedoms at stake is not without problems. Both the CHS (article 2) and the LOSC (article 87) state that the freedoms listed there (navigation, overflight, laying of submarine cables and pipelines, to which the LOSC adds the construction of artificial islands and other installations, and scientific research) exist 'inter alia'. Surprisingly, the phrase 'inter alia has attracted scant comments. Yet, article 87 stands in stark contrast to the CHS, which subjected the existence of a non-listed freedom to its being recognised by 'the general principles of international law' (article 2), and to proposals at the Third Conference on the Law of the Sea to include only a list of enumerated freedoms in the new convention. (29)

The CHS, however, did not solve the question of whether it would be up to each user to prove that a given freedom complied with general principles, or whether the mere fact that the intended use did not violate any general legal principle would suffice. (30) The provision on general principles was definitively abandoned at the Third Conference in 1975. (31) It was actually absent from the draft prepared by the International Law Commission ('ILC'), and is the result of a successful amendment proposed by the United Kingdom, also containing the reasonable regard requirement, equally absent from the ILC's draft. (32) What that draft contained was a commentary to article 27 on the freedom of the high seas; the third sentence of that commentary stated that 'States are bound to refrain from any acts which might adversely affect the use of the high seas by nationals of other States'. (33) The Special Rapporteur, Mr Francois, earlier suggested the following statement of principle: 'The freedom of the high seas does not include the right to utilize the high seas in a manner which unreasonably prevents other States from enjoying that freedom'. (34) This, in turn, prompted a modification suggested by Mr Pal: 'Freedom of the high seas does not extend to any such utilization of the high seas as is likely to be harmful to any part of mankind'. (35) This attracted sharp criticism. (36) Sir Gerald Fitzmaurice considered that, while the Special Rapporteur had emphasised the implicit corollary to the freedom of the high seas (namely, that it could not be exercised in a way which prevented other States from doing the same), Mr Pal had proposed a new rule of law prohibiting the use of the high seas for certain purposes. (37) He emphasised that, if he did not press for the addition of a fifth freedom (scientific research), it was only on the understanding that the reference to scientific research, as it stood in the comment, would be retained. (38) He would nevertheless abstain from voting in favour of the third sentence mentioned earlier, 'in view of the implications which, in the light of the debate, might now be read into it' (39). When the United Kingdom introduced its proposed amendment at the Geneva Conference, (40) it explained that 'it contained a more accurate statement of the position'. (41) This was done deliberately against a Polish proposal which would have incorporated the third sentence of the commentary mentioned earlier into the new convention. (42) The British proposal was accepted and the Polish one rejected. (43)

As article 87 now stands, and in the light of the generality of the principle of freedom, it would be incorrect to assert that the identification (that is, existence) of a specific freedom is circumscribed by any test of reasonableness, or even a test of no-harm or no-prejudice. Not even warships are allowed to interfere with the activities of a private vessel on the ground that such activity is 'unreasonable'. (44) Hence it is doubtful that a novel use of the high seas, jurisdiction over which is not expressly...