Mare clausum

Last updated September 18, 2023

Mare clausum (legal Latin meaning "closed sea") is a term used in international law to mention a sea, ocean or other navigable body of water under the jurisdiction of a state that is closed or not accessible to other states. Mare clausum is an exception to mare liberum (Latin for "free sea"), meaning a sea that is open to navigation to ships of all nations.^[1]^[2] In the generally accepted principle of international waters, oceans, seas, and waters outside national jurisdiction are open to navigation by all and referred to as "high seas" or mare liberum . Portugal and Spain defended a Mare clausum policy during the Age of Discovery.^[3] This was soon challenged by other European nations.

History

From 30 BC to AD 117 the Roman Empire came to surround the Mediterranean by controlling most of its coasts. Romans started then to name this sea mare nostrum (Latin for "our sea").^[4] At those times the period between November and March was considered the most dangerous for navigation, so it was declared "mare clausum" (closed sea), although bans on navigation were probably never enforced.^[5] In classical law the ocean was not territorial. However, since the Middle Ages maritime republics like the Republic of Genoa and the Republic of Venice claimed a "Mare clausum" policy in the Mediterranean. Nordic kingdoms and England also required passage rates, enforced monopolies on fishing, and blocked foreign ships in their neighboring seas.

Mare clausum in the Age of Discovery

During the Age of Discovery, between the 15th and 17th century, sailing that had been mostly coastal became oceanic. Thus, the main focus was on long-haul routes. Countries of the Iberian Peninsula were pioneers in this process, seeking exclusive property and exploration rights over lands discovered and to be discovered. Given the amount of new lands and the resulting influx of wealth, the Kingdom of Portugal and the united kingdoms of Castile and Aragon began to compete openly. To avoid hostilities, they resorted to secrecy and diplomacy, marked by the signing of the Treaty of Alcáçovas in 1479 and the Treaty of Tordesillas in 1494.

The papacy helped legitimize and strengthen these claims, since Pope Nicholas V by the bull Romanus Pontifex of 1455 prohibited others to navigate the seas under the Portuguese exclusive without permission of the king of Portugal. The very titling of Portuguese kings announced this claim to the seas: "King of Portugal and the Algarves, within and beyond the sea in Africa, Lord of Commerce, Conquest and Shipping of Arabia, Persia and India". With the discovery of sea route to India and later the route of Manila the concept of "Mare clausum" in the treaty was realized. This policy was refused by European nations like France, Holland and England, who were then barred from expanding and trading, and engaged in privateering and piracy of routes, products and colonies.

In the 16th and 17th century Spain considered the Pacific Ocean a Mare clausum – a sea closed to other naval powers. As the only known entrance from the Atlantic, the Strait of Magellan was at times patrolled by fleets sent to prevent entrance of non-Spanish ships. On the western end of the Pacific Ocean the Dutch threatened the Spanish Philippines.^[6] In the 1580s Spain attempted to settle and fortify the strait to deny entry to foreign navigation.^[7]^[8]

Mare clausum versus Mare liberum

In February 1603 the seizing of 1500-ton loaded Portuguese Santa Catarina by the Dutch East India Company led to scandal with a public judicial hearing and a campaign to sway public (and international) opinion. The representatives of the Company then called Hugo Grotius, a jurist of the Dutch Republic, to draft a defence of the seizure.^[9]

In 1609 Hugo Grotius sought to ground his defense of the seizure in terms of the natural principles of justice; Grotius formulated a new principle that the sea was international territory and all nations were free to use it for seafaring trade. One chapter of his long theory-laden treatise entitled De Jure Prædæ made it to the press in the form of the influential pamphlet, Mare Liberum (The Free Sea). In it Grotius, by claiming 'free seas', provided suitable ideological justification for the Dutch breaking up of various trade monopolies through its formidable naval power (and then establishing its own monopoly).

Reaction followed. In 1625 Portuguese priest Serafim de Freitas published the book De Iusto Imperio Lusitanorum Asiatico (Of the just Portuguese Asian Empire) addressing step by step the arguments of the Dutch.^[10] Despite his arguments, the international situation demanded an end to the Mare clausum policy, and freedom of the seas as an essential condition for the development of maritime trade.^[11]

England, competing fiercely with the Dutch for domination of world trade, opposed Grotius' ideas and claimed sovereignty over the waters around the British Isles. In Mare clausum (1635) John Selden coined the term, endeavoring to prove that the sea was in practice virtually as capable of appropriation as terrestrial territory. As conflicting claims grew out of the controversy, maritime states came to moderate their demands and base their maritime claims on the principle that it extended seawards from land. A workable formula was found by Cornelius van Bynkershoek in his De dominio maris (1702), restricting maritime dominion to the actual distance within which cannon range could effectively protect it. This became universally adopted and developed into the three-mile limit.

Related Research Articles

Hugo Grotius, also known as Huig de Groot and Hugo de Groot, was a Dutch humanist, diplomat, lawyer, theologian, jurist, statesman, poet and playwright. A teenage prodigy, he was born in Delft and studied at Leiden University. He was imprisoned in Loevestein Castle for his involvement in the controversies over religious policy of the Dutch Republic, but escaped hidden in a chest of books that was transported to Gorinchem. Grotius wrote most of his major works in exile in France.

The Treaty of Tordesillas, signed in Tordesillas, Spain, on 7 June 1494, and ratified in Setúbal, Portugal, divided the newly discovered lands outside Europe between the Portuguese Empire and the Spanish Empire, along a meridian 370 leagues west of the Cape Verde islands, off the west coast of Africa. That line of demarcation was about halfway between the Cape Verde islands and the islands visited by Christopher Columbus on his first voyage, named in the treaty as Cipangu and Antillia.

The terms international waters or transboundary waters apply where any of the following types of bodies of water transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems (aquifers), and wetlands.

Freedom of the seas is a principle in the law of the sea. It stresses freedom to navigate the oceans. It also disapproves of war fought in water. The freedom is to be breached only in a necessary international agreement.

The Age of Discovery or the Age of Exploration, part of the early modern period and largely overlapping with the Age of Sail, was a period from approximately the 15th century to the 17th century, during which seafarers from a number of European countries explored, colonized, and conquered regions across the globe. The extensive overseas exploration, particularly the European colonisation of the Americas, with the Spanish and Portuguese at the forefront, later joined by the Dutch, English, and French, marked an increased adoption of colonialism as a government policy in several European states. As such, it is sometimes synonymous with the first wave of European colonization.

<span class="mw-page-title-main">Law of the sea</span> International law concerning maritime environments

Law of the sea is a body of international law governing the rights and duties of states in maritime environments. It concerns matters such as navigational rights, sea mineral claims, and coastal waters jurisdiction.

The papal bull Aeterni regis [English: "Of the eternal king"] was issued on 21 June 1481 by Pope Sixtus IV. It confirmed the substance of the Treaty of Alcáçovas, reiterating that treaty's confirmation of Castile in its possession of the Canary Islands and its granting to Portugal all further territorial acquisitions made by Christian powers in Africa and eastward to the Indies.

<i>Inter caetera</i> 1493 papal bull issued by Pope Alexander VI

Inter caetera was a papal bull issued by Pope Alexander VI on the 4 May 1493, which granted to the Catholic Monarchs King Ferdinand II of Aragon and Queen Isabella I of Castile all lands to the "west and south" of a pole-to-pole line 100 leagues west and south of any of the islands of the Azores or the Cape Verde islands.

Santa Catarina was a Portuguese merchant ship, a 1500-ton carrack, that was seized by the Dutch East India Company during February 1603 off Singapore. She was such a rich prize that her sale proceeds increased the capital of the V.O.C by more than 50%. From the large amounts of Ming Chinese porcelain captured in this ship, Chinese pottery became known in Holland as Kraakporselein, or "carrack-porcelain" for many years.

Freedom of navigation (FON) is a principle of law of the sea that ships flying the flag of any sovereign state shall not suffer interference from other states, apart from the exceptions provided for in international law. In the realm of international law, it has been defined as “freedom of movement for vessels, freedom to enter ports and to make use of plant and docks, to load and unload goods and to transport goods and passengers". This right is now also codified as Article 87(1)a of the 1982 United Nations Convention on the Law of the Sea.

The Dutch–Portuguese War was a global armed conflict involving Dutch forces, in the form of the Dutch East India Company, the Dutch West India Company, and their allies, against the Iberian Union, and after 1640, the Portuguese Empire. Beginning in 1598, the conflict primarily involved the Dutch companies and fleet invading Portuguese colonies in the Americas, Africa, and the East Indies. The war can be thought of as an extension of the Eighty Years' War being fought in Europe at the time between Spain and the Netherlands, as Portugal was in a dynastic union with Spain after the War of the Portuguese Succession, for most of the conflict.

The Treaty of Antwerp, which initiated the Twelve Years' Truce, was an armistice signed in Antwerp on 9 April 1609 between Spain and the Netherlands, creating the major break in hostilities during the Eighty Years' War for independence conducted by the Seventeen Provinces in the Low Countries.

The three-mile limit refers to a traditional and now largely obsolete conception of the international law of the seas which defined a country's territorial waters, for the purposes of trade regulation and exclusivity, as extending as far as the reach of cannons fired from land.

Portuguese maritime exploration resulted in the numerous territories and maritime routes recorded by the Portuguese as a result of their intensive maritime journeys during the 15th and 16th centuries. Portuguese sailors were at the vanguard of European exploration, chronicling and mapping the coasts of Africa and Asia, then known as the East Indies, and Canada and Brazil, in what came to be known as the Age of Discovery.

William Welwod (1578–1622) was a Scottish jurist who was the first to formulate the laws of the sea in an insular Germanic language.

Theodorus Johannes "Dirk" Graswinckel was a Dutch jurist, a significant writer on the freedom of the seas. He was a controversialist, who also rose to a high legal position where he advised Descartes. He was a cousin and pupil of Grotius. He was also a poet and translator of Thomas à Kempis.

<i>Mare Liberum</i> Book by Hugo Grotius

Mare Liberum is a book in Latin on international law written by the Dutch jurist and philosopher Hugo Grotius, first published in 1609. In The Free Sea, Grotius formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade. The disputation was directed towards the Portuguese Mare clausum policy and their claim of monopoly on the East Indian Trade. Grotius wrote the treatise while being a counsel to the Dutch East India Company over the seizing of the Santa Catarina Portuguese carrack issue. The work was assigned to Grotius by the Zeeland Chamber of the Dutch East India Company in 1608.

The Treaty of Zaragoza or Saragossa, also called the Capitulation of Zaragoza or Saragossa, was a peace treaty between Castile and Portugal, signed on 22 April 1529 by King John III of Portugal and the Habsburg emperor Charles V in the Aragonese city of Zaragoza. The treaty defined the areas of Castilian and Portuguese influence in Asia in order to resolve the "Moluccas issue", which had arisen because both kingdoms claimed the lucrative Spice Islands for themselves, asserting that they were within their area of influence as specified in 1494 by the Treaty of Tordesillas. The conflict began in 1520, when expeditions from both kingdoms reached the Pacific Ocean, because no agreed meridian of longitude had been established in the far east.

The Cartaz was a naval trade license or pass issued by the Portuguese empire in the Indian ocean during the sixteenth century. Its name derives from the Portuguese term 'cartas', meaning letters. The British navicert system of 1939–45 shared similarities with it.

Franciscus Serafim de Freitas was a Portuguese jurist and canon lawyer.

References

↑ Robert McKenna, "The Dictionary of Nautical Literacy", p. 225 McGraw-Hill Professional, 2003, ISBN 0-07-141950-0
↑ Gabriel Adeleye, Kofi Acquah-Dadzie, Thomas J. Sienkewicz, James T. McDonough, "World dictionary of foreign expressions: a resource for readers and writers", p. 240, Bolchazy-Carducci Publishers, 1999, ISBN 0-86516-423-1
↑ The licensing of vessels by the Portuguese was initiated by Prince Henry the Navigator in 1443, after Prince Pedro granted him the monopoly of navigation, war and trade in the lands south of Cape Bojador. Later this law would be enforced by the Bulls Dum Diversas (1452) and Romanus Pontifex (1455), more buls and treaties followed, the most significant being the Treaty of Tordesillas.
↑ Tellegen-Couperus, Olga (1993). Short History of Roman Law, p.32. Routledge. ISBN 0-415-07251-4.
↑ Conrad Gempf, "The Book of Acts in Its Graeco-Roman Setting", p.23, Volume 2, Wm. B. Eerdmans Publishing, 1994, ISBN 0-8028-4847-8
↑ Lytle Schurz, William (1922), "The Spanish Lake", The Hispanic American Historical Review, 5 (2): 181–94, doi:10.2307/2506024, JSTOR 2506024
↑ Soto Rodríguez, José Antonio (2006). "La defensa hispana del Reino de Chile" (PDF). Tiempo y Espacio (in Spanish). 16. Retrieved 30 January 2016.
↑ Martinic, Mateo (1977). Historia del Estrecho de Magallanes (in Spanish). Santiago: Andrés Bello. pp. 110–120.
↑ See Ittersum (2006), chapter 1.
↑ Freitas, Frei Serafim de, Do Justo Império Asiático dos Portugueses. Freitas, Frei Serafim de, Just Do the Portuguese Asian empire. De Iusto Imperio Lusitanorum Asiatico, 2 vols. (in Portuguese)
↑ António Costa Canas, "Mare Clausum", 2003, in Portuguese

Bibliography

Anand Prakash, "Origin and development of the law of the sea: history of international law revisited," Brill, 1983, ISBN 90-247-2617-4
Tuck, Richard, Natural rights theories: their origin and development, Cambridge University Press, 1981, ISBN 0-521-28509-7
Ferreira, Ana Maria Pereira, O Essencial sobre Portugal e a Origem da Liberdade dos Mares, Lisboa, Imprensa Nacional Casa da Moeda, [sd] (Basics of Portugal and the Origin of Freedom of the Seas, in Portuguese).
Merêa, Paulo, "Os Jurisconsultos Portugueses e a Doutrina do "Mare Clausum"", Revista de História, nº 49, Lisboa, 1924 ("The Jurists and the Doctrine of the Portuguese" "Mare clausum", Journal of History, in Portuguese)
Saldanha, António Vasconcelos de, "Mare Clausum" Dicionário de História dos Descobrimentos Portugueses, vol. II, pp. II, pp. 685–86 (Dictionary of the History of Discoveries, in Portuguese).
van Ittersum, Martine Julia (2006). Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies 1595–1615. Boston: Brill. hallo