Posted: November 29th, 2023

LEGAL GENESIS OF THE CONCEPT OF FREEDOM OF THE HIGH SEA

LEGAL GENESIS OF THE CONCEPT OF FREEDOM OF THE HIGH SEA

The concept of freedom of the high sea is one of the fundamental principles of the law of the sea. It refers to the idea that the high sea, which is the part of the ocean that is not under the jurisdiction of any state, is open to all states for navigation, fishing, scientific research and other lawful activities. The concept of freedom of the high sea has a long and complex history, which can be traced back to ancient times.

The Ancient Origins of the Concept

The earliest evidence of the concept of freedom of the high sea can be found in the writings of ancient Greek and Roman philosophers and jurists, such as Aristotle, Cicero and Gaius. They recognized that the sea was a common good that belonged to all mankind, and that no state could claim sovereignty or exclusive rights over it. They also argued that the sea was a source of natural law and justice, and that its use should be regulated by reason and morality.

The Medieval Developments of the Concept

The concept of freedom of the high sea was challenged in the Middle Ages by some European powers, such as Portugal and Spain, who claimed exclusive rights over certain parts of the ocean based on their discoveries and papal grants. These claims were opposed by other states, such as France, England and the Netherlands, who asserted their right to navigate and trade freely on the high sea. The conflict between these two views resulted in several wars and treaties, such as the Treaty of Tordesillas (1494), which divided the world between Portugal and Spain, and the Mare Liberum (1609), which was a treatise written by Hugo Grotius in defense of the Dutch freedom of navigation.

The Modern Consolidation of the Concept

The concept of freedom of the high sea was gradually accepted and codified by most states in the modern era, especially after the emergence of international law and organizations. The first international convention on the law of the sea was held in 1958, which adopted four treaties on different aspects of the maritime regime, including one on the high sea. The convention affirmed that the high sea was open to all states for peaceful purposes, and that no state could validly subject any part of it to its sovereignty. The convention also established some rules and limitations on the exercise of freedom of the high sea, such as respect for other states’ rights and interests, protection of marine environment and resources, cooperation in scientific research and prevention of piracy.

The concept of freedom of the high sea was further developed and refined in subsequent conventions and declarations, such as the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which is widely regarded as the constitution of the oceans. The UNCLOS defined more precisely the scope and extent of the high sea, which covers about 64% of the world’s ocean surface. The UNCLOS also reaffirmed and expanded the rights and duties of states on the high sea, such as freedom of navigation, overflight, fishing, laying submarine cables and pipelines, constructing artificial islands and installations, conducting marine scientific research and exploration and exploitation of natural resources.

The Future Challenges to the Concept

The concept of freedom of the high sea is facing new challenges in the 21st century, due to various factors such as globalization, technological innovation, environmental degradation, climate change, maritime security threats and competing claims. Some states are seeking to extend their jurisdiction or influence over parts of the high sea, such as through unilateral declarations or bilateral agreements. Some non-state actors are also posing threats to the freedom and safety of navigation on the high sea, such as pirates, terrorists or illegal fishermen. Moreover, some emerging issues are not adequately addressed or regulated by existing legal frameworks, such as deep seabed mining, marine genetic resources or marine biodiversity.

Therefore, there is a need for continuous dialogue and cooperation among states and other stakeholders to uphold and promote the concept of freedom of the high sea, which is essential for maintaining peace, stability and prosperity in the world.

Bibliography

– Aristotle (2000) Politics. Translated by Benjamin Jowett. Kitchener: Batoche Books.
– Cicero (1913) De Officiis. Translated by Walter Miller. Cambridge: Harvard University Press.
– Gaius (1904) The Institutes. Translated by Edward Poste. Oxford: Clarendon Press.
– Grotius H (2004) The Free Sea. Translated by Richard Hakluyt. Edited by David Armitage. Indianapolis: Liberty Fund.
– United Nations (1958) Convention on the High Seas. Available at: https://legal.un.org/ilc/texts/instruments/english/conventions/8_1_1958_high_seas.pdf (accessed 29 November 2023).
– United Nations (1982) Convention on the Law of Sea. Available at: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (accessed 29 November 2023).