Mare clausum
Encyclopedia
Mare clausum 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. 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
. This was soon challenged by other European nations.
came to surround the Mediterranean by controlling most of its coasts. Romans started then to name this sea mare nostrum
(latin for "our sea"). 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. 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. Also Nordic kingdoms and England
, required passage rates, monopolies on fishing and blocked foreign ships in their neighboring seas.
, 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, who 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.
, a jurist
of the Dutch Republic
, formulated a new principle that the sea was international territory and all nation
s were free to use it for seafaring trade
. In the The Free Sea (Mare Liberum). 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. 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.
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 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
.
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
to mention a sea, ocean or other navigable body of water
Body of water
A body of water or waterbody is any significant accumulation of water, usually covering the Earth or another planet. The term body of water most often refers to large accumulations of water, such as oceans, seas, and lakes, but it may also include smaller pools of water such as ponds, puddles or...
under the jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
of a state
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
that is closed or not accessible to other states. Mare clausum is an exception to mare liberum
Mare Liberum
Mare Liberum is a book in Latin on international law written by the Dutch jurist and philosopher Hugo Grotius. 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...
(latin for "free sea"), meaning a sea that is open to navigation to ships of all nations. In the generally accepted principle of International waters
International waters
The terms international waters or trans-boundary 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 , and wetlands.Oceans,...
, oceans, seas, and waters outside national jurisdiction
Territorial waters
Territorial waters, or a territorial sea, as defined by the 1982 United Nations Convention on the Law of the Sea, is a belt of coastal waters extending at most from the baseline of a coastal state...
are open to navigation by all and referred to as "high seas" or mare liberum
Mare Liberum
Mare Liberum is a book in Latin on international law written by the Dutch jurist and philosopher Hugo Grotius. 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...
. Portugal
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
and Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
defended a Mare clausum policy during the age of discovery
Age of Discovery
The Age of Discovery, also known as the Age of Exploration and the Great Navigations , was a period in history starting in the early 15th century and continuing into the early 17th century during which Europeans engaged in intensive exploration of the world, establishing direct contacts with...
. This was soon challenged by other European nations.
History
From 30 BC to 117 AD the Roman empireRoman Empire
The Roman Empire was the post-Republican period of the ancient Roman civilization, characterised by an autocratic form of government and large territorial holdings in Europe and around the Mediterranean....
came to surround the Mediterranean by controlling most of its coasts. Romans started then to name this sea mare nostrum
Mare Nostrum
Mare Nostrum may refer to:*Mare Nostrum, the Roman term for the Mediterranean Sea, adopted by Italian nationalists and fascists.*Mare Nostrum , a Spanish-language novel by Vicente Blasco Ibáñez...
(latin for "our sea"). 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. In classical law the ocean was not territorial. However since the Middle Ages
Middle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
maritime republics like the Republic of Genoa
Republic of Genoa
The Most Serene Republic of Genoa |Ligurian]]: Repúbrica de Zêna) was an independent state from 1005 to 1797 in Liguria on the northwestern Italian coast, as well as Corsica from 1347 to 1768, and numerous other territories throughout the Mediterranean....
and the Republic of Venice
Republic of Venice
The Republic of Venice or Venetian Republic was a state originating from the city of Venice in Northeastern Italy. It existed for over a millennium, from the late 7th century until 1797. It was formally known as the Most Serene Republic of Venice and is often referred to as La Serenissima, in...
claimed a "Mare clausum" policy in the Mediterranean. Also Nordic kingdoms and England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, required passage rates, monopolies on fishing and blocked foreign ships in their neighboring seas.
Mare clausum in the Age of discovery
During Age of discoveryAge of Discovery
The Age of Discovery, also known as the Age of Exploration and the Great Navigations , was a period in history starting in the early 15th century and continuing into the early 17th century during which Europeans engaged in intensive exploration of the world, establishing direct contacts with...
, 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
Kingdom of Portugal
The Kingdom of Portugal was Portugal's general designation under the monarchy. The kingdom was located in the west of the Iberian Peninsula, Europe and existed from 1139 to 1910...
and the united kingdoms of Castile
Crown of Castile
The Crown of Castile was a medieval and modern state in the Iberian Peninsula that formed in 1230 as a result of the third and definitive union of the crowns and parliaments of the kingdoms of Castile and León upon the accession of the then King Ferdinand III of Castile to the vacant Leonese throne...
and Aragon
Crown of Aragon
The Crown of Aragon Corona d'Aragón Corona d'Aragó Corona Aragonum controlling a large portion of the present-day eastern Spain and southeastern France, as well as some of the major islands and mainland possessions stretching across the Mediterranean as far as Greece...
began to compete openly. To avoid hostilities, they resorted to secrecy and diplomacy
Diplomacy
Diplomacy is the art and practice of conducting negotiations between representatives of groups or states...
, marked by the signing of the Treaty of Alcáçovas
Treaty of Alcaçovas
The Treaty of Alcáçovas put an end to the War of the Castilian Succession in favor of Isabella I of Castile, and confirmed Castilian control of the Canary Islands and Portuguese control of the Madeira , Azores and Cape Verde islands , all in the Atlantic Ocean The Treaty of Alcáçovas (also known...
in 1479 and the Treaty of Tordesillas
Treaty of Tordesillas
The Treaty of Tordesillas , signed at Tordesillas , , divided the newly discovered lands outside Europe between Spain and Portugal along a meridian 370 leagueswest of the Cape Verde islands...
in 1494.
The papacy helped legitimize and strengthen these claims, since Pope Nicholas V, who by the bull Romanus Pontifex
Romanus Pontifex
Romanus Pontifex is a papal bull written January 8, 1455 by Pope Nicholas V to King Afonso V of Portugal. As a follow-up to the Dum Diversas, it confirmed to the Crown of Portugal dominion over all lands discovered or conquered during the Age of Discovery. Along with encouraging the seizure of the...
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
Vasco da Gama
Vasco da Gama, 1st Count of Vidigueira was a Portuguese explorer, one of the most successful in the Age of Discovery and the commander of the first ships to sail directly from Europe to India...
and later the route of Manila
Manila Galleon
The Manila galleons or Manila-Acapulco galleons were Spanish trading ships that sailed once or twice per year across the Pacific Ocean between Manila in the Philippines, and Acapulco, New Spain . The name changed reflecting the city that the ship was sailing from...
the concept of "Mare clausum" in the treaty was realized. This policy was refused by European nations like France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Holland and England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, who were then barred from expanding and trading, and engaged in privateering and piracy
Piracy
Piracy is an act of robbery or criminal violence at sea. The term can include acts committed on land, in the air, or in other major bodies of water or on a shore. It does not normally include crimes committed against persons traveling on the same vessel as the perpetrator...
of routes, products and colonies.
Mare clausum versus Mare liberum
In 1609 Hugo GrotiusHugo Grotius
Hugo Grotius , also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law...
, a jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
of the Dutch Republic
Dutch Republic
The Dutch Republic — officially known as the Republic of the Seven United Netherlands , the Republic of the United Netherlands, or the Republic of the Seven United Provinces — was a republic in Europe existing from 1581 to 1795, preceding the Batavian Republic and ultimately...
, formulated a new principle that the sea was international territory and all nation
Nation
A nation may refer to a community of people who share a common language, culture, ethnicity, descent, and/or history. In this definition, a nation has no physical borders. However, it can also refer to people who share a common territory and government irrespective of their ethnic make-up...
s were free to use it for seafaring trade
Trade
Trade is the transfer of ownership of goods and services from one person or entity to another. Trade is sometimes loosely called commerce or financial transaction or barter. A network that allows trade is called a market. The original form of trade was barter, the direct exchange of goods and...
. In the The Free Sea (Mare Liberum). Grotius, by claiming 'free seas', provided suitable ideological justification for the Dutch breaking up of various trade monopolies
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
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. 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.
England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, competing fiercely with the Dutch for domination of world trade, opposed Grotius ideas and claimed sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
over the waters around the British Isles
British Isles
The British Isles are a group of islands off the northwest coast of continental Europe that include the islands of Great Britain and Ireland and over six thousand smaller isles. There are two sovereign states located on the islands: the United Kingdom of Great Britain and Northern Ireland and...
. In Mare clausum (1635) John Selden
John Selden
John Selden was an English jurist and a scholar of England's ancient laws and constitution and scholar of Jewish law...
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 Bynkershoek
Cornelius Bynkershoek
Cornelis van Bijnkershoek was a Dutch jurist and legal theorist who contributed to the development of international law in works like De Dominio Maris Dissertatio ; Observationes Juris Romani , of which a continuation in four books appeared in 1733; the treatise De foro...
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
Three-mile limit
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.In Mare clausum John...
.
See also
- Treaty of TordesillasTreaty of TordesillasThe Treaty of Tordesillas , signed at Tordesillas , , divided the newly discovered lands outside Europe between Spain and Portugal along a meridian 370 leagueswest of the Cape Verde islands...
- Treaty of AlcáçovasTreaty of AlcaçovasThe Treaty of Alcáçovas put an end to the War of the Castilian Succession in favor of Isabella I of Castile, and confirmed Castilian control of the Canary Islands and Portuguese control of the Madeira , Azores and Cape Verde islands , all in the Atlantic Ocean The Treaty of Alcáçovas (also known...
- Romanus PontifexRomanus PontifexRomanus Pontifex is a papal bull written January 8, 1455 by Pope Nicholas V to King Afonso V of Portugal. As a follow-up to the Dum Diversas, it confirmed to the Crown of Portugal dominion over all lands discovered or conquered during the Age of Discovery. Along with encouraging the seizure of the...
- Mare liberumMare LiberumMare Liberum is a book in Latin on international law written by the Dutch jurist and philosopher Hugo Grotius. 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...
- Hugo GrotiusHugo GrotiusHugo Grotius , also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law...
- John SeldenJohn SeldenJohn Selden was an English jurist and a scholar of England's ancient laws and constitution and scholar of Jewish law...