The End of Freedom of the Seas?: Grotius, Law of the Sea, and Island Building
| Author | Danielle Kroon |
| Position | Solicitor, Litigation team at Marque Lawyers, Sydney; LLM (International Legal Studies, Jerome Lipper Award recipient)(NYU); BA, LLB (Hons I) (Macquarie University). Thank you to Professor Robert Howse for his guidance and assistance in drafting this paper, any errors are of course my own. |
| Pages | 299-325 |
The End of Freedom of the Seas?: Grotius,
Law of the Sea, and Island Building
D
ANIELLE
K
ROON
*
I. Introduction
In 1608, a short work by Hugo Grotius entitled Mare Liberum was
published,
1
the title translating to “freedom of the seas.” At the time of
publication, the author was anonymous, but the full title of the work (in
English) gave away its purpose: “The Freedom of the Seas or The Right
Which Belongs to the Dutch to Take Part in the East Indian Trade.”
2
This
was effectively a legal brief intended to address a specific legal dispute, but
the influence of this document has far exceeded its original purpose. The
underlying principle—that no country may own the seas—has shaped the
development of modern law of the sea and remains a fundamental principle
that continues to guide development for ongoing law of the sea issues as they
arise. This paper will consider the Grotian conception of freedom of the
seas, as applied to the controversial modern activity of island building.
Technological advances have provided for developments in this area that
were not envisioned at the time of Grotius, nor even fully realized at the
time of the establishment of critical modern law of the sea treaties. This is
inevitable; technological advances will require discussion about the best
means of regulating the new subject matter and activities. When discussing
new issues, the fundamental Grotian principle of freedom of the seas is
continually referred to as a means of framing the discourse: no country may
own the seas. Although there have been debates about the rights of coastal
states and jurisdiction on the high seas, the fundamental principle of
freedom of the seas remains enshrined as the opposing principle for
proposed limitations.
* Solicitor, Litigation team at Marque Lawyers, Sydney; LLM (International Legal Studies,
Jerome Lipper Award recipient)(NYU); BA, LLB (Hons I) (Macquarie University). Thank you
to Professor Robert Howse for his guidance and assistance in drafting this paper, any errors are
of course my own.
1. Throughout this paper, the following English translation of the text was used: H
UGO
G
ROTIUS
, T
HE
F
REEDOM OF THE
S
EAS OR
T
HE
R
IGHT
W
HICH
B
ELONGS TO THE
D
UTCH TO
T
AKE
P
ART IN THE
E
AST
I
NDIAN
T
RADE
(James Brown Scott ed., Ralph Van Deman Magoffin
trans., Oxford University Press, 1916) (1633) (translation of M
ARE
L
IBERUM
,
SIVE DE JURE
QUOD
B
ATAVIS COMPETIT AD
I
NDICANA
C
OMMERCIA
D
ISSERTATIO
).
2. H
UGO
G
ROTIUS
, T
HE
R
IGHTS OF
W
AR AND
P
EACE
, I
NCLUDING THE
L
AW OF
N
ATURE
AND OF
N
ATIONS
title page (A.C. Campbell trans., 1901) (1625) (translation of D
E
J
URE
B
ELLI
A
C
P
ACIS
).
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
300 THE INTERNATIONAL LAWYER [VOL. 52, NO. 2
Section II of this paper will seek to place Grotius’s Mare Liberum in the
appropriate historical context and discuss the purpose and motivation for his
work. This will allow for a more well-reasoned analysis of his fundamental
arguments, their justification, and their relevance for modern law of the sea.
Section III will explore the ideas of Grotius as outlined in Mare Liberum,
considering the various issues raised within the overall argument about
freedom of the seas. It will also critically analyze the justifications that
support his overarching thesis that no country may own the seas, and the
subsequent acceptance of this concept in international law. Section IV will
consider modern law of the sea, and expansions within that body of law that
encroach upon the underlying idea of freedom of the seas. It will explore the
underlying tension in modern law of the sea between coastal state rights and
freedom of the seas, briefly noting examples of how this has been addressed.
Section V will discuss the specific activity of island building, as an example of
a modern issue in law of the sea that potentially infringes upon the concept
of freedom of the high seas. This will outline current factual examples of
island building, the international response to such activities, and the
applicable law currently governing the regime of islands. Section VI will
analyze what island building activities mean for law of the sea and the
underlying Grotian principle of law of the sea. Section VII will conclude by
arguing that island building does not represent a fundamental change in
conceptualizing law of the sea and reinforce the need to maintain freedom of
the seas within modern law of the sea.
II. Placing Grotius in Context
In order to analyze the Grotian conception of freedom of the seas, it is
important to first place Grotius and his work, Mare Liberum, in the
appropriate historical and philosophical context. He was not the first
scholar or politician to consider the legal status of the oceans; in fact,
Grotius specifically relies upon the writings of previous philosophers and
statesman to justify his arguments.
3
Nor did Grotius set out to provide a
philosophical justification for freedom of the seas simply as an intellectual or
academic pursuit. Mare Liberum was a very focused project, with a clear
intent: it was a legal argument based on an actual case.
4
The first sentence in
Chapter I clearly states his “intention is to demonstrate briefly and clearly
that the Dutch—that is to say, the subjects of the United Netherlands—have
the right to sail to the East Indies, as they are now doing, and to engage in
trade with the people there.”
5
But, despite the underlying purpose of Mare
Liberum, it has been stated that the principle “constitutes one of the pillars of
3. Id.
4. Id.
5. G
ROTIUS
, supra note 1, at 7.
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
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