1 Freedom or Dominion of the Seas? Current Issues, Ancient Concerns
The tension between freedom and sovereign claims continues to characterise the evolution of the law of the sea. In September 2018, the American guided-missile destroyer uss Decatur and a Chinese warship almost collided in the South China Sea, getting as close to each other as 40 meters. The Decatur had just sailed within twelve nautical miles off two reefs in the Spratly chain of islets as part of the United Statesâ operations intended to enforce the right of free passage in international waters (fonop).1 These two reefs are claimed by China, Taiwan, Vietnam, and the Philippines. Similar incidents continue to occur in the waters of the South China Sea.
The Chinese, by now an established world power, have been assertively extending their de facto control on several reefs, islands, and low-tide elevations, from which they uphold maritime claims based on the so-called ânine-dash lineâ. Competing claims in the region come from Taiwan, Brunei, Vietnam, Indonesia, Malaysia, and the Philippines.2 The strategic importance of the South China Sea is clear: it hosts rich, though increasingly depleted, fisheries alongside significant oil and gas reserves. Moreover, one-third of global shipping passes through its waters, making it a critical artery of world trade in an interconnected global economy. Many of the worldâs largest economies depend on these seaways, and the concentration of commercial routes within this relatively narrow area raises concerns about its vulnerability as a strategic chokepoint â especially if it were to fall under the control of a single power.
During Barack Obamaâs presidency, the
In this context, the Philippines filed a case against China regarding the disputed waters of the South China Sea. In July 2016, the Permanent Court of Arbitration in The Hague issued a landmark ruling, declaring that Beijingâs expansive maritime claims, based on alleged âhistoric rightsâ, had no legal foundation. However, China flatly rejected the decision.4 The courtâs ruling was grounded on the provisions of the 1982 United Nations Convention on the Law of the Sea (unclos iii), sometimes referred to as âthe constitution of the oceansâ. This epoch-making international agreement regulates maritime interactions at sea in a comprehensive manner, detailing the legal status of different pelagic zones. unclos iii has been described as a âpackage dealâ because it incorporates numerous compromises between the differing interests of various groups of states. Striking the right balance between the common use of the oceans and the exclusive rights claimed by coastal states was particularly challenging during the protracted negotiations that led to its adoption.
Following World War ii, a new trend towards extending state jurisdiction over adjacent seas gained momentum, resulting in the gradual carving up of the oceans and their subjection to various, more or less exclusive, legal regimes.5 Following World War ii, a new trend towards extending state jurisdiction over adjacent seas gained momentum, resulting in the gradual carving up of the oceans and their subjection to various, more or less exclusive, legal regimes. Despite this, the principle of freedom of the seas remains the prevailing rule concerning the high seas. In essence, the tension between freedom and control continues to shape the evolution of the law of the sea. This volume seeks to explore the deep historical roots of this dialectic in international legal history.
2 Seas and Humans, a Complex Relationship
The sea has always captivated humankind, evoking both irrational fears and a desire for mastery. Throughout history, political entities have recognised the vital role of pelagic spaces in facilitating essential activities such as trade, communication, and fishing.6 For centuries, ships were the only viable means of transporting heavy and bulky goods across vast distances. Seas and oceans also provided abundant resources, including fisheries and salt, which were central to economic and societal development. Even today, the sea remains indispensable, sustaining a growing global population by offering food and other resources. However, the relationship between humanity and the oceans has evolved.7 With nearly all the worldâs oceans now explored and mapped, human activities have intensified, leaving a profound impact on marine ecosystems. Practices such as overfishing, plastic pollution, and carbon emissions disrupt biodiversity and undermine the oceanâs critical role in regulating the Earthâs climate. The oceans, once seen as an inexhaustible reservoir, are now under severe strain.
However, it has not always been like this. Humansâ capability to govern the seas has been historically feeble. Winds and currents could easily overpower even the most daring captains, crushing wooden hulls and making perilous even the shortest sea route. However, humans never stopped sailing and taking their chances. Therefore, the question of whether humans could possess the sea was bound to emerge with the creation of structured societies and complex legal systems. In the beginning, it mainly represented a question of sea power, such as during the Minoan thalassocracy in the Aegean Sea. For a long time, a legal dimension for the sea did not emerge. Seafaring peoples were more concerned with the ways in which sea power could be used to gain political and economic primacy. Undoubtedly, throughout human history, power, trade, and navigation have been inextricably interrelated. That said, this aspect evolved in various ways across different societies.8
With the gradual evolution of the concept of âlawâ and the establishment of legal systems, the relationship between humans and pelagic spaces emerged as a critical area of analysis for jurists and scholars. As complex political entities developed, interactions at sea became a fundamental aspect of international relations, necessitating regulations to prevent perpetual chaos. Relying solely on force proved insufficient, prompting the creation of legal frameworks to justify territorial claims, secure resources, and repel competitors. However, the inherently intangible and uncontrollable nature of the sea posed unique challenges for legal analysis. While the sea remains a potential source of danger even today, it was far more formidable during the long age of sailing vessels, when the lack of advanced technology and the use of rudimentary navigational tools amplified the risks of maritime ventures.
Not surprisingly then, throughout history humans have mystically revered the sea as a deity and feared it as an unpredictable killer. Greek mythology, for instance, attributed an important place to Poseidon, the god of the seas. It also provided many examples where gods determined the faith of men and women at sea, somehow offering an explanation to the unpredictable dangers inherent to navigation.9 A famous example allegedly happened at the onset of the war of Troy. The Greek army was blocked in Aulis by unfavourable winds provoked by Artemisâs wrath against the Greek leader Agamemnon. The latter ultimately accepted to sacrifice his daughter, Iphigenia, in order to appease the goddess and gain safe passage to Troy.10
Other civilisations, from ancient Polynesia to the pre-modern Caribbean, developed a similarly deep connection with the surrounding waters. They often worshipped marine deities and practised apotropaic rituals to appease the power of the sea.11 Over time, two distinct ways of perceiving the sea emerged. The first saw it as an untameable force â an expanse of inherent lawlessness and fear. The second reimagined the sea as something that could be tamed and governed, much like the land. A striking example of this latter perspective is found in the writings of the Greek historian Herodotus, who describes events during the second Persian invasion of Greece (480â479 bce). To facilitate the massive Persian armyâs crossing of the Hellespont â the strait separating Asia and Europe â engineers constructed a pontoon bridge for troops and animals to march across. However, a storm soon destroyed the bridge. Enraged, Xerxes i (r. 486â465 bce), the Persian King of Kings, sought to punish the sea itself, ordering it to be lashed and symbolically shackled with fetters.12 Not by chance then, the human flaw of hubris (á½Î²ÏιÏ) has often been associated with the sea.
3 The âClaimed Seasâ: Legal Argumentation and Politics
If the law of the sea today remains one of the most dynamic and debated branches of international law, the concerns it addresses go far back in history. This book seeks to study its historical development in the pre-modern world (broadly understood as comprising the late Middle Ages and the Early Modernity), which in many regards constitute the formative period for this body of law.13 It focuses primarily on the emergence of what is referred to throughout the book as the concept or principle of the âclaimed seasâ. Broadly speaking, it deems acceptable that polities may acquire exclusive rights over marine spaces.
The book explores how this notion evolved in pre-modern legal argumentation as a response to questions about whether and how law could extend its authority over the sea. It frequently served as a justification for a wide range of maritime assertions advanced by ambitious princes and wealthy maritime republics. As a hypernym or umbrella term, I conceive the notion of âclaimed seasâ as encompassing diverse maritime assertions from the late Middle Ages and Early Modern Age, ranging from criminal jurisdiction, protection of seafarers, imposition of tolls, imposition of conditions upon entrance and use of the sea, bans on navigation, and exclusive fishing zones. In the fullest sense, it may refer to dominion-sovereignty (dominium maris).14
Firstly, the notion of âclaimed seasâ emerged across the seas bordering the European continent. Secondly, it was applied to the world oceans. It developed in a tense dialogue (or clash) with the opposite principle, i.e. the freedom of the sea. The latter involves the belief that the sea is intrinsically different from land and cannot be owned whether by private individuals or polities, being destined to be shared by humankind. Hence, throughout the book special attention is devoted to tracing the legal arguments conceived to support different forms of exclusive rights over the sea, paying due attention to the specific terminology and concepts deployed in different spatial-temporal coordinates. To this end, the book necessarily delves into the constant interaction between law and politics that underpinned the idea itself of claiming exclusive rights over the sea and its contingent materialisations.15
Arguments employed in the past to justify preferential rights over the sea are not only relevant as historical phenomena. They also allow us to put in proper perspective todayâs international dossiers, such as disputes in the South China Sea, post-Brexit fisheriesâ regulations, overfishing, intentional damages to submarine cables, or the future legal status of a potentially ice-free Arctic Ocean.16 More than ever, as the law of the sea and ocean governance are concerned a better knowledge of the past can help us navigate the present and the future of this blue planet we inhabit, as âhistorical connection(s) allow us to see the inner substance of the present, not just its outward formâ.17 Indeed, it is surprising to see how many parallelisms exist between pre-modern debates on the âclaimed seasâ and the concerns of the present. Fisheries and trading routes fuelled temptations of maritime dominion in the Middle Ages as much as they do today. However, over the last two centuries new kinds of resources, such as oil and gas, have assumed primary relevance. New technologies and naval capabilities have also changed the degree of control states can exercise over pelagic spaces and oceans and seas have become more interconnected than ever before.
4 The Oceans, International Law, and Eurocentrism
In general terms, seas are smaller than oceans and are usually located where land and ocean meet. Typically, seas are partially enclosed by land and are less deep than oceans. The term âoceanâ is usually reserved to one of the worldâs five main bodies of waters: the Atlantic, Pacific, Indian, Arctic, and Antarctic oceans. All combined, these bodies of water cover more than three-fifths of the surface of the globe. They constitute an indispensable connecting link between the continents, as well as an immense reservoir of natural resources. It is then easy to comprehend why the regulation of navigation and maritime interactions has been essential from an early stage.18
This book begins with an overview of the late medieval âclaimed seasâ tendencies across the seas bordering Europe, both to the South and the North of the continent. Afterwards, it addresses the role played by oceangoing navigation on the further development of âclaimed seasâ policies in the Early Modern Age. As soon as European sailors started to systematically challenge the open waters of the Atlantic Ocean, they felt the need to legally justify national-political agendas aimed at seaborne expansion. This formed an unprecedented challenge for early modern lawyers and diplomats as the endless expanses of the oceans gave rise to much greater questions compared to smaller seas such as the Baltic or the Mediterranean. Even though the opposite ideas of the âclaimed seasâ, and the freedom of the sea (mare liberum), had already been outlined in earlier epochs, they assumed a totally new dimension once the oceans became the spatial reference. In other words, I will argue that the oceans played a major role in triggering more profound and radical speculations on the legal status of the sea.
The period taken into consideration by the volume consists of the transitional centuries between the Late Middle Ages and the Early Modern Age.19 However, within this broad timeframe, particular focus is devoted to the second half of the sixteenth and first half of the seventeenth centuries (Chapters 3 and 4). The choice of the timeframe indirectly relativises the importance of the Peace of Westphalia (1648), traditionally viewed as the starting point of a modern âinternational lawâ.20 From a geospatial perspective, the book moves across three macro-regions: first, the Mediterranean Sea; second, the seas of northern Europe; and third, the oceans. All these pelagic spaces are here understood as frameworks for historical and legal analysis, first separately (Chapters 1â3) and then with a focus on interconnectedness and comparison (Chapter 4).21
This book naturally finds its collocation within the broader subject of the history of international law. If the Early Modern Age represented a time of innovation in European international relations and new geographical knowledge, it also coincided with the rise of the âlaw of nationsâ as a separate branch of legal science and learning.22 Many changes in the latter field were linked, caused by, or had an impact on the way pelagic areas were legally approached. For instance, the rise of the modern state and the concepts of sovereignty and jurisdiction, the adoption of resident embassies, and the evolution of the laws of war and natural law theories, all eventually feature in this work. It has long been maintained that the historical development of the law of the sea, and more broadly of âmodernâ international law, has been remarkably eurocentric.23 In reaction, authors such as Charles H. Alexandrowitz and Ram P. Anand have highlighted, for instance, the importance of the maritime laws and customs that had evolved across maritime Asia by the end of the medieval period, well before the arrival of the Europeans via the Cape Route.24 Hassan S. Khalilieh has more recently expounded the contribution of Islamic thought to the law of the sea.25 These authors have highlighted the not-necessarily Western European lineage of the doctrine of the freedom of the sea, drawing on the long traditions of freedom of navigation and trade in the Indian Ocean and the Islamic Mediterranean.
At the threshold of Modernity, the European law of nations was indeed merely one of several regional systems, coexisting with others such as those of the Muslim world, China, and the Indian subcontinent and Southeast Asia. At the time, the âriseâ of Western Europe was far from inevitable. For example, fifteenth-century Ming China (1368â1644) possessed all the resources necessary to potentially impose a distinctly Chinese way of conceiving the sea. However, the great oceangoing expeditions lead by the Ming Admiral Zheng He between 1405 and 1433 â which by all accounts dwarfed European contemporaries â were soon followed by isolationist policies.26 In the following centuries, China, Muslim empires (and other Asian polities too) largely left the initiative of long-range navigation and colonisation to European nations.
The Early Modern Age can be conceived as the formative period for the European-made law of the sea that European colonial empires eventually succeeded in imposing worldwide, albeit only later, starting from the eighteenth century. From this point of view, it seems undeniable that European legal culture, and understanding regarding what the law actually is, shaped the customary law of the sea that remained the reference until the second half of the twentieth century and the successive codification efforts sponsored by the United Nations.27 European jurists and decision makers, well before Cristopher Columbusâ and Vasco da Gamaâs times, conceived the possibility of acquiring exclusive rights over sea areas, debating in the strictly intertwined arenas of politics and law. The idea itself of claiming dominion over pelagic areas appears as a product of European legal-political thinking, albeit a fiercely contested one from its inception.
Today, the landscape looks markedly different. European and Western perspectives on the law of the sea and ocean governance now represent only one of many factors shaping their evolution.28 Political scientists speak of an ongoing process of de-westernisation in the realms of international relations, which may well apply to the law of the sea and ocean governance.29 Decolonisation, the enlargement of the international community, and the relative decline western statesâ share of global gdp have shifted the global balance of power. Developing countries now make up the majority of the international community, and (re)emerging great powers such as China and India play an increasingly prominent role in shaping the complex and diverse interests that underpin the law of the sea â just as they did five centuries ago.
5 Methodology and Sources
5.1 Methodology
Throughout this volume, state practice and doctrinal works are examined in conjunction to shed light on the development of the law of the sea in general and the concept of âclaimed seasâ in particular. State practice played a central role in the genesis of the corpus of customary rules regulating âinter-polityâ relations at sea, especially as long as a theoretical legal science was not yet developed. What polities and princes did appears critical and tells much about their legal understanding of the sea. As such, the volume participates in a broader âturn to historyâ in international law30 and, within that turn, to the increasing possibilities for a history of the practice of international law.31 Nevertheless, doctrinal-theoretical works remain essential for the depth of their analyses and the introduction of new concepts. Moreover, they contributed to the establishment of the law of nations (later international law) as a separate subject of study. Seminal works such as Hugo Grotiusâ Mare liberum and John Seldenâs Mare clausum did influence the policies of entire nations.
An analysis of doctrinal works divorced from their politico-historical context would severely limit our understanding, as legal sources are neither autonomous nor self-contained.32 Many jurists who addressed the legal status of the sea were closely connected to governmental circles, with ardent patriotism often shaping their arguments as they sought to advance national interests. Natural law rules and high principles such as the freedom of navigation were whole-heartedly defended and rapidly abandoned according to changing circumstances. With this in mind, the volume examines state practice and doctrine in tandem, asserting that they influenced one another and offer complementary perspectives on the emergence of the concept of âclaimed seasâ. By doing so, it maps the political-legal frameworks deployed to conceptualise legal regimes at sea and highlights their instrumental use by political actors as a layer of persuasion for achieving state and non-state objectives.33 The volume thus seeks to reveal the intricate entanglement of law and politics that continues to underpin the law of the sea, while critically assessing the persistent gap between legal-dogmatic approaches and state practice.
If we accept the distinction between âtraditional legal historyâ and âcontextual legal historyâ,34 this volume aspires to be included in the second category. The emergence of the âclaimed seasâ in legal argumentation was deeply intertwined with state politics as well as broader historical cycles. Hence, great importance is given to the historical, economic, and political background in which legal developments took place. In other words, contextualisation appears essential to a correct interpretation of what different actors understood as acceptable exclusive rights over the sea.35 Throughout the following chapters, context is conceived in a broad sense, in no way restricted to the chronologically immediate one. For instance, Chapter 1 includes an overview of Roman law concerning the sea as well as an account of the role played by the papacy in late medieval international relations since they both heavily influenced early modern debates on the âclaimed seasâ.
Matthew Craven has identified three different forms of international legal history.36 First, history in international law; second, international law in history; and third, history of international law. Randall Lesaffer points out that such categories may be applied to general legal history too.37 The first category (history in international law), consists of an instrumental approach to legal history. It is not interested in the faithful representation of past events, but more in using them to serve present purposes.38 The second category (international law in history), involves the historical analysis of law within its broader political, cultural, social, and economic backgrounds. The mutual interplay between law and society, in a defined time and place, becomes central. In this case, âthe historical law of that given time and place is studied as a phenomenon within the particular society the historian is interested in and not as a phase within the evolution of the lawâ.39 The last category of literature (history of international law), follows a middle path between the other two. Even though it is more historical in its approach, it is often evolutionary-genealogical since its main concern is the gradual evolution of the law, or particular legal systems, concepts, and institutions, from past to present.
Lesaffer underlines the danger of approaching history in a genealogic fashion, since it easily presents it as a smooth process of progress, tracing clear lines of connection from the past to the present.40 The American legal historian Robert Gordon points out that lawyersâ temptation to look into the past to find support for the issues of the present can easily bring them to identify historical continuities where there are none.41 In such cases, the legitimisation of contemporary politics becomes the main aim of the research. Andrew Fitzmaurice also underlines that proper contextualisation is needed to avoid âthe political manipulation of the pastâ for present purposes. Such manipulation can serve positive aims but also be employed for less noble ends.42
In relation to the historical development of claims over the sea, the temptation to write an instrumental and potentially a-historical âhistory of international lawâ may be strong, especially if we consider the economic and geopolitical implications of contemporary debates on ocean governance. Having the legal status of the sea as object of investigation one should be careful not to trace a too-linear evolution of concepts and institutions. For instance, Arnold Raestad, an influential author of the last century, named his major work on the historical development of the law of the sea, La mer territoriale, études historiques et juridiques (1913), basically tracing back in time the concept of territorial sea as far as classical Rome. Nowadays, it seems difficult to trace the modern concept of the territorial sea before the eighteenth century.43 Another example of a potential anachronistic trap might be a carefree use of the notion of âmaritime sovereigntyâ while addressing historical periods, e.g. the Middle Ages, during which the concept was yet unknown.
The international law scholar Anne Orford has criticised contextual histories of international law, especially regarding their supposed treatment of anachronism as a âsupreme sinâ and what she viewed as âmethodological policingâ.44 In On International Legal Method, she identifies a difference between juridical and historical thinking. In her view, international lawyers, being âtrained in the art of making meaning move across timeâ, have the right to approach the past in more flexible terms, focusing on its perceived bearing for present concerns.45 In other words, she points out the risk that a too-strict contextualisation of the past could make it inconsequential for todayâs necessities, weakening its power to enlighten the politics of the present. The historian of international law Martti Koskenniemi welcomed Orfordâs critique, somehow departing from his methodological notes contained in earlier works.46 In the article Vitoria and Us. Thoughts on Critical Histories of International Law he argues that âeven as contextualism opens a necessary avenue for the examination of past legal and political vocabularies, it is not without its difficultiesâ, since it inclines âto rely on a âpositivistâ separation between the past and the present that encourages a historical relativism and ends up suppressing or undermining efforts to find patterns in history that might account for todayâs experiences of domination and injusticeâ.47 Thus, he notes that even though contextualism has its own merits, it cannot be the only focus of international legal history that needs to be relevant for the present.48
Lauren Benton vigorously replied to Orfordâ critique of âcontextualismâ, reaffirming the importance of context, conceived in a deeper and broader sense, also suggesting that âhistorians and lawyers can find a settled foundation for at least two elements of a shared enterprise that do not require particular methodological commitmentsâ.49 First, the pursuit of evidence-based history. Notwithstanding training and favoured research questions, all scholars must provide reliable and verifiable grounds for their assertions and interpretation of past sources, allowing evaluation by other scholars. Second, the commitment to analytical coherence.50 Being aware of these ongoing methodological debates,51 I chose to structure my book around the notion of âclaimed seasâ â and not, for example, mare clausum, a term first employed by John Selden in the seventeenth century â in order to stay clear of easily avoidable anachronisms, giving the right historical perspective to concepts that often required centuries to emerge and consolidate.
As already stated, I employ âclaimed seasâ as a general âumbrellaâ term, encompassing distinct legal-political claims, developed in different spatio-temporal contexts. My primary scope is not to write an evolutionary history of maritime sovereignty over the sea. This book aims to study the various declinations of the âclaimed seasâ principle in their own specific context, underlying and comparing similarities and differences.52 Only at the end of this process it will be possible to evaluate if and how early modern maritime claims influenced the further development of the law of the sea. Approaching the topic differently would simply amount to a âfictionalâ relation to the law of the sea and its slow and multifaceted historical development.
After all, in Lesafferâs words contextual legal history is nothing more than what âlegal historians have been doing since the days of humanistic scholarship: the textual and contextual analysis of their written sources. Historians should see to it that their sources are as authentic as possible. They should try to read them as the contemporaries of the authors wouldâ.53 Any legal history âwhich fails to understand the past in its own terms and on its own merits will probably fail to bring anything to the discussion other than some random factual proof or some arguments of authority for a preconceived notion that roots, not in the past, but in present lawâ.54 The Belgian legal historian adds that before we can learn anything from history that might be relevant for today, we first have to allow history to speak for itself. That is, indeed, what humanist jurists already claimed centuries ago with regard to the study of Roman law.55
For our present purposes, it is also relevant to recall Koskenniemiâs distinction between two broad ideal types of history of international law. Firstly, ârealistâ narratives that focus on state power and geopolitics. They view international lawâs past in terms of the succession of apologies for State behaviour. Secondly, âidealistâ histories that focus on lawyers and philosophers, and view the past through theoretical-doctrinal debates. The Finnish scholar suggests that neither of these approaches is viable in itself and that both are best seen as presumptive positions or biases.56 The first category foregrounds diplomacy and conflicts, over which law would throw a veil of justification. The second one highlights the development of laws, institutions and doctrines to which the world of diplomacy and State power only provides the background.57 The present volume balances these two different perspectives, taking into consideration both the utopian theories and the political realities that shaped the early modern emergence of the âclaimed seasâ in legal argumentation. Indeed, it is crucial to underline when and where reality and theoretical ideas diverged, and when, instead, they mutually influenced each other.
5.2 Sources
Throughout this volume, primary and secondary sources are employed jointly. From this perspective, Chapter 4 constitutes the core of the volume. It proposes a close reading of the works of early seventeenth-century supporters of the âclaimed seasâ and mare clausum, namely those by Seraphin de Freitas, Paolo Sarpi, Giulio Pace da Beriga, William Welwod, and John Selden. These authors have been chosen because they provide paradigmatic insights on the three âclaimed seasâ traditions, which had arisen across the three macro-regions already identified: the Mediterranean Sea, the seas of northern Europe, and the oceans. Furthermore, they all drafted their works in the 1610s in the immediate aftermath of the publication of Grotiusâ Mare liberum, even though Freitas and Selden published their treaties only a few years later.
All these authors wrote in reaction, or straightforward opposition, to the sixteenth-century emergence of the freedom of the sea in the international arena. This development, occurring both in diplomacy and doctrine, forced a re-elaboration of the traditional arguments used to support âclaimed seasâ policies, as well as the creation of new strategies of persuasion. The analysis of Seldenâs Mare clausum, seen as the culmination of this process, closes the analysis. Indeed, it was both the last of these works to be published and the one advocating the highest degree of territorialisation of maritime spaces, or dominium maris. That being said, further works defending the two opposite principles continued to be published in the following decades. Thus, my selection of authors is by no means to be considered exhaustive. However, I decided to focus my attention on the âfirst generationâ of âclaimed seasâ defences, ending my survey once the notion reached theoretical consistency.
Even though Grotiusâ Mare liberum is not the main object of this volume, it still represents the reference point for the analysis of his opponentsâ arguments and ideas. In other words, the works of the advocates of the âclaimed seasâ can only be appreciated in relation to the opposite idea of the freedom of the seas. Consequently, Chapter 3 examines Grotiusâ Mare liberum, focusing on its historical role as a trigger for the (re)emergence of the âclaimed seasâ in legal argumentation, but also on Fernando Vázquez y Menchacaâs less known treatise Controversiarum illustrium, which in fact anticipated and inspired several of Grotiusâ arguments.58 Thus, a substantial portion of the book is devoted to the analysis of the doctrinal works mentioned above. That said, an equally important consideration is given to the development of the âclaimed seasâ principle in state practice, diplomacy and politics. In this regard, based on the broad timeframe and different geographical macro-regions taken into consideration, the focus has rested on printed sources. Collections of historical treaties and diplomatic documents have been employed throughout the volume in an interwoven way to reconstruct the state practice related to the âclaimed seasâ.
For instance, Wilhelm G. Greweâs selection of documents contained in the two volumes of Fontes Historiae Iuris Gentium, offers a valid support through the various âepochsâ of international law identified by the author.59 Frances G. Davenportâs European Treaties Bearing on the History of the United States and its Dependencies to 1648 and Jean du Mont de Carels-Kroonâs Corps universel diplomatique du droit des gens have proved crucial for the bookâs purposes and are copiously referenced throughout the book. Davenport in particular compiles the most relevant international treaties and papal bulls of the Age of Exploration, accompanied by valuable background information.60 Papal documents, especially Alexander viâs bulls, are also included in Alfonso GarcÃa-Galloâs, Las bulas de Alejandro vi y el ordenamiento juriίdico de la expansioón portuguesa y castellana en Ãfrica e Indias.61
In relation to Iberian seaborne expansion, dealt with in Chapter 2, I dived into specialised collections of archival sources. They provided hundreds of relevant documents for reconstructing Iberian âclaimed seasâ aspirations over the oceans. Firstly, the one edited by Antonio J. Dias Dinis, Monumenta Henricina, colectaânea documental relativa ao Infante D. Henrique, which focuses on Portuguese endeavours at the time of Prince Henry the Navigator. Secondly, José R. Coelhoâs Alguns documentos do Archivo Nacional da Torre do Tombo ácerca das navegações e conquistas portuguezasâ¦, and Vitorino M. Godinhoâs, Documentos sôbre a expansão portuguesa. Thirdly, MartÃn Fernández de Navarrete, Colección de los viajes y descubrimientos que hicieron por mar los españoles desde fines del siglo xv, which includes documents on the first phase of Castilian discoveries.62 Fourthly, Quadro elementar das relações polÃticas e diplomáticas de Portugal com as diversas potencias do mundo, edited by the Visconde de Santarem, notably regarding the diplomatic intercourse between England and Portugal in the second half of the seventeenth century.63
In relation to the Nordic kingdoms, primary sources have been consulted through the online versions of the Diplomatarum Norvegicum (Norway) and the Diplomatarum Danicum (Denmark).64 The online version of the Diplomatarum Norvegicum makes available approximately 20,000 diplomas, i.e. letters and documents related to Norway between the years 1050 and 1590. In addition, I consulted Lars R. Laursenâs Danmark-Norges Traktater 1523â1750, med dertil hørende Aktstykker, to better understand the diplomatic tensions between England and DenmarkâNorway at the turn of the sixteenth century, notably Dano-Norwegian legal arguments.65
Regarding England, the Calendars of State Papers Foreign have been rather useful as a navigation tool. Moreover, I made use of Pierre Chaplaisâ English Medieval Diplomatic Practice,66 Reginald G. Marsdenâs Documents Relating to the Law and Custom of the Sea, 1205â1767 and John Rushworthâs Historical Collections, which contains documents and related to James viâi and Charles iâs reigns in England and Scotland.67 In addition, Thomas Rymerâs collection Foedera has been used with its large amount of background correspondence and documents concerning diplomatic manoeuvring between England and its neighbours.68
The detailed reports written by early modern Venetian Ambassadors, both in the series edited by Eugenio Alberi and those edited by Nicolò Barozzi and Guglielmo Berchet, have provided yet another valuable source of information.69 They feature first-hand insights on diplomatic-political relations and princely courts of the time, as seen through the keen eyes of Venetian resident and extraordinary ambassadors. Interestingly for our purposes, Venetian envoys always showed a particular interest in the maritime-naval affairs of the hosting country and the broader geopolitical context.
6 The Historiography of the âClaimed Seasâ
A great deal of literature has dealt with the emergence of the freedom of the seas, and especially with Grotiusâ Mare liberum, to the immediate context that motivated its publication as well as its place in the evolution of the authorâs legal thought. However, in relation to the principle of the âclaimed seasâ, things appear different. Firstly, the âpre-Grotianâ development of jurisdictional claims over the sea has drawn less attention, because of the bias of considering the further development of the law of the sea as a complete victory of the freedom of the seas. Secondly, many of the authors who replied to Grotius defending âclaimed seasâ pretensions have been generally obscured by the long-lasting ascendancy of the Dutchman among later generations of jurists and the central place he acquired in the western legal tradition canon. However, some of them developed surprisingly modern views concerning the sea, which deserve more consideration. The fact that the notion of âclaimed seasâ continued to be central in state practice in the decades following the publication of Mare liberum is often conveniently neglected for sake of linearity.
In addition, the most influential monographs on the topic are dated, although they remain essential reference works to this day. In 1913, the already mentioned Norwegian scholar Raestad published a study on the historical evolution of the territorial seas.70 Two other key works are Thomas W. Fultonâs The Sovereignty of the Sea and Pitman B. Potterâs, The Freedom of the Sea in History, Law and Politics, published in 1911 and 1924, respectively.71 Fulton provided an in-depth study focused on the issues of North Sea fisheries and British closed sea claims. However, he also included a valuable historical introduction to maritime claims in general. Potterâs work contains several references to closed sea claims, but it remains mostly devoted to the freedom of the sea.72 Indeed, it was influenced by the historical context of the interbellum in which it was published.
More recently, the Indian international law scholar Ram Prakash Anand published Origin and Development of the Law of the Sea (1983). In it, he provided a thought-provoking overview of the historical developments of the law of the sea, attempting to balance the long-standing eurocentricity of the subjectâs historiography by applying twail insights. To do so, he focused on events occurring in Asian waters before and after the arrival of the Portuguese.73 Michael J. Feakesâs unpublished Ph.D. dissertation titled Formative Influences on the Evolution of International Law: A Case Study of Territorial Waters (1550â1650) provides a survey of the early modern development of law of the sea, albeit focused on the issue of the breadth of territorial waters.74
In 2019, the French historian Guillaume Calafat authored a remarkable volume on the historical development of maritime sovereignty, Une mer jalousée. Contribution à lâhistoire de la souveraineté (Méditerranée, xviie siècle).75 Although it focuses on maritime claims and concepts developed across the early modern Mediterranean, it also provides stimulating considerations in a broader perspective, namely the dispute between mare liberum and mare clausum and the development of central concepts such as iurisdictio (jurisdiction). The already mentioned Islamic Law of the Sea. Freedom of Navigation and Passage Rights in Islamic Thought by Hassan S. Khalilieh (2019) also includes a substantial chapter on âoffshore sovereignty and the territorial seaâ.76
In addition to the above-mentioned monographs, numerous journal articles, book chapters, and volumes have been published on some of the topics included in the present work. They provided valuable analyses and inputs that are duly taken into consideration in the following pages. However, they usually address specific authors, regions or topics and do not comprehensively address the long-term development of the notion of âclaimed seasâ across different macro-regions as this book has the ambition to do.
7 Outline
The structure of the book is as follows. Chapter 1 delves into late medieval legal discussions and state practice related to the âclaimed seasâ. It focuses especially on the Mediterranean Sea and the seas of northern Europe, i.e. the main areas of maritime activity for Europeans at the time. Various polities extended their power over the surrounding seas and were confronted with the issue of legally justifying their pretensions. Such phenomenon interacted with the revival of legal science and the establishment of universities. Two âclaimed seasâ traditions developed autonomously from each other in the South (the maritime republics of Venice and Genoa) and the North (the kingdoms of Norway and Denmark). This duality encourages reflections on how two different legal traditions, one very learned and the other more practically oriented, dealt with the phenomenon of maritime claims. The geopolitical background of the Late Middle Ages is outlined to contextualise the analysis, as well as a concise account of Roman legal thought on the sea, due to its long-lasting influence. In other words, Chapter 1 lays the necessary foundations for the following ones.
Chapter 2 radically enlarges the spatial context taken into consideration. It follows the first endeavours of the âAge of Explorationâ, examining how Portuguese and Spanish seafarers opened new routes through the world oceans and how both Iberian crowns sought to monopolise their use. In the beginning, the Atlantic Ocean became a contested frontier between the two neighbours, with the papacy playing a cumbersome role. Only in 1494, the two Iberian kingdoms reached a compromise with the Treaty of Tordesillas. From that time onwards, Spain and Portugal focused on excluding newcomers from their respective spheres of influence. As a result, a new âclaimed seasâ tradition developed in relation to the oceans, initially distinct from the two medieval traditions introduced in Chapter 1. It was partially built on different legal grounds since pre-existing legal concepts, conceived having as reference smaller seas, appeared inadequate to regulate the endless oceanic expanses. The nautical maps of the turn of the fifteenth century clearly convey the difficulty of visualising the oceans and related legal claims.
Chapter 3 explores the aftermath of Iberian oceanic expansion. In the first half of the sixteenth century, Spain and Portugal held on to their duopoly in the face of unrelenting attacks by pirates and maritime raiders. In the second half of the century, other seafaring nations, such as France, England, and the Dutch Republic, openly challenged Spain and Portugal and their closed sea claims. They sought to impose a freedom of navigation paradigm by diplomatic, doctrinal, and military means. Consequently, the idea of the freedom of the seas emerged in legal argumentation, applied alike to the open oceans and to European waters. In this context, the Dutch scholar Hugo Grotius published the legal brief Mare liberum in 1609. It played a crucial role in crystallising the opposing views on the legal status of the sea, igniting a debate that is influential to this day. More specifically, it forced those who disagreed with Grotiusâ views to articulate the justifications for the âclaimed seasâ in a clearer way than ever before. With its focus on the freedom of the sea, Chapter 3 can be conceived as a sort of fulcrum around which the three chapters devoted to the âclaimed seasâ rotate.
Chapters 4 constitutes the core of the present work. It addresses the reactions to Grotiusâ Mare liberum and the (re)emergence of âclaimed seasâ discourse in the first decades of the seventeenth century, both in the inter-polity and doctrinal arenas. Many jurists, from different backgrounds, reacted to Grotiusâ pamphlet. They wrote treatises defending the idea that states could acquire exclusive rights over the seas. Generally, these authors have been less studied than has been Grotius, and this volume contributes a new and contextual analysis of their works. The chapter assesses how the principle of the âclaimed seasâ confirmed itself as the adversary of the freedom of the seas, gaining new momentum in the immediate aftermath of Mare liberumâs publication. This process culminated in 1635 with the publication of Mare clausum seu de dominio maris (The Closed Sea or the Dominion of the Sea) by the English scholar John Selden. The chapter explores and compares the similarities and differences of the arguments employed by the most prominent authors involved, also showing how opportunism shaped statesâ policies concerning the âclaimed seasâ. Finally, the bookâs conclusions briefly assess how the opposition between mare liberum and mare clausum influenced the further development of the law of the sea, as well as the significance of mare clausum in present times.
As a coherent whole, these chapters seek to unravel the historical development of âclaimed seasâ legal-political argumentation in the pre-modern world across three different macro-regions: the Mediterranean Sea, the seas of northern Europe, and the oceans. They critically discuss how historical events and trends, such as oceanic explorations and the emergence of the freedom of the sea, affected pretensions of exclusive rights over the sea, producing a revival of the principle in the early seventeenth century. Furthermore, they investigate how the three âclaimed seasâ traditions identified above (Mediterranean, northern European, and oceanic) developed separately, starting to interact in a consistent way only at the turn of the sixteenth century.
Steven Lee Myers, Ê»American and Chinese Warships Narrowly Avoid High-Seas Collisionʼ, The New York Times, 2 October 2018, Online Edition; Jesse Johnson, Ê»Photos confirm U.S.-Chinese warshipsâ near-miss as experts say South China Sea encounter likely to affect allied operations in the regionʼ, The Japan Times, Online Edition, 3 October 2018. For an overview, see Eleanor Freund, Freedom of Navigation in the South China Sea: A Practical Guide, Belfer Center for Science and International Affairs, Harvard Kennedy School, Special Report, June 2017.
Yih-Jye Hwang and Edmund Frettingham (eds.), Maritime and Territorial Disputes in the South China Sea. Faces of Power and Law in the Age of Chinaâs Rise (London-New York: Routledge, 2021); Youngmin Seo, The South China Sea Dispute as International Law and Politics: Discovering the Role of Law in Times of Power Shift (Leiden: Brill, 2024).
Ben Blanchard, ʻChina Navy Chief Takes Dig at U.S. Freedom of Navigation Patrolsʼ, Reuters, 24 April 2019.
pca Case n. 2013-19, In the Matter of the South China Sea Arbitration, before An Arbitral Tribunal Constituted under Annex vii to the 1982 United Nations Convention on the Law of the Sea, between the Republic of the Philippines and the Peopleâs Republic of China. Cf. Mary J. Cantorias Marvel, âThe South China Sea arbitration: navigating compliance strategies through the lens of raya and the last dragonâ, in Christina Voigt and Caroline Foster (eds.), International Courts versus Non-compliance Mechanisms: Comparative Advantages in Strengthening Treaty Implementation (Cambridge: University Press, 2024), 471â88; Christian Pogies, âunclos and the South China Sea Arbitration: Into Lawfareâs Abyss?â, The German Journal on Contemporary Asia, 143 (2017), 93â105; idem, âOceans of cynicism? Norm-genesis, lawfare and the South China Sea arbitration caseâ, in Björnstjern Baade et al. (eds.), Cynical International Law? Abuse and Circumvention in Public International and European Law (Berlin: Springer, 2021), 143â62.
E.g. with the extension of the territorial sea and to the creation of new institutes such as the exclusive economic zone (eez) and the continental shelf. See Donald R. Rothwell and Tim Stephens, The International Law of the Sea (Oxford-Portland: Hart Publishing, 2023), 1â17; Yoshifumi Tanaka, The International Law of the Sea (Cambridge: University Press, 2019), 25.
Pascal Picq, âLa mer est le propre dâHomo sapiensâ, in Pascal Arnaud and Philip de Souza (eds.), The Sea in History â Vol. i, The Ancient World (Woodbridge: Boydell Press, 2017), 9â38; Brian Fagan, Beyond the Blue Horizon. How the Earliest Mariners Unlocked the Secrets of the Oceans (London: Bloomsbury Press, 2012).
At least regarding the oceansâ surface, deep-sea beds remain largely unexplored to this day. It has been estimated that ninety-nine percent of the ocean floor is unexplored. Exploring the depths below the oceanâs surface is very difficult, time-consuming and, expensive.
For a broad perspective, see David Abulafia, The Boundless Sea. A Human History of the Oceans (Oxford: University Press 2019); idem, The Great Sea: A Human History of the Mediterranean (Oxford: University Press, 2013); Christian Buchet, La grande histoirie vue de la mer (Paris: Cherche-Midi, 2017).
Sandra Blakely, âMaritime risk and ritual responses: sailing with the gods in the Ancient Mediterraneanâ, in Arnaud and de Souza (eds.), The Sea in History, i, 362â79.
There are different endings to the scene, in some Iphigenia was spared by the intervention of the goddess herself. Euripidesâ play Iphigenia at Aulis (408â406 bce) famously depicts the dramatic scenario surrounding the sacrifice.
On early Polynesian navigation in the Pacific Ocean, see Abulafia, The Boundless Sea, 3â39.
Herodotus, Histories, vii, translated by Alfred D. Godley (The Loeb Classical Library, London/Cambridge, MA: William Heinemann Ltd/Harvard University Press, 1938), 34â6. On this passage, see Dominique Briquel, âThe Punishment of the Hellespont by Xerxes: Perception of Religious Behaviour of the Enemy in Conflict Situationsâ, Graeco-Latina Brunensia, 21(2) (2016), 51â60.
For our purposes, the law of the sea can be defined as the set of legal rules that regulates human interactions at sea, with special regard to matters related to what we know term public international law. However, it should be noted that throughout the pre-modern period the boundaries between what we now define as the âlaw of the seaâ and âmaritime lawâ (the body of private law which governs relationships between parties and private entities in relation to matters such as transport of passengers, general average, jettison, sea loans, etc.) were almost non-existent.
Pitman B. Potter, The Freedom of the Sea in History, Law and Politics (London: Longmans, 1924), 65.
See Alexander Orakhelashvili, âInternational law, international politics and ideologyâ, in idem (ed.), Research Handbook on the Theory and History of International Law (Cheltenham-Northampton: Edward Elgar, 2020), 240â79.
Timo Koivurova, Stefan Kirchner and Pirjo Kleemola-Juntunen, âThe Arctic Ocean: are we ready to govern a new ocean?â, in Marta C. Ribeiro, Fernando Loureiro Bastos and Tore Henriksen (eds.), Global Challenges and the Law of the Sea (Cham: Springer, 2020), 59â80.
Matthew Dyson, âComparative legal history: methodology for morphologyâ, in Olivier Moréteau, Aniceto Masferrer and Kjell A. Modéer (eds.), Comparative Legal History (Cheltenham-Northampton: Edward Elgar, 2019), 110â38, at 110.
David J. Bederman, âThe seaâ, in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law (Oxford: University Press, 2012), 359â79.
This choice allows to underline changes while acknowledging the significant continuities between the late medieval and early modern inter-polity law (or law of nations). See Oliver Diggelmann, âThe periodization of the history of international lawâ, in Fassbender and Peters (eds.), The Oxford Handbook of the History of International Law, 1009â10; Ignacio de la Rasilla del Moral, âThe Problem of Periodization in the History of International Lawâ, Law and History Review, 37(1) (2019), 275â308; William E. Butler, âPeriodisation and international lawâ, in Orakhelashvili (ed.), Research Handbook on the Theory and History of International Law, 281â95; Heinard Steiger, âFrom the International Law of Christianity to the International Law of the World Citizen. Reflections on the Formation of the Epochs of the History of International Lawâ, Journal of the History of International Law, 3(2) (2001), 180â93.
See, among others, Andreas Osiander, âSovereignty, International Relations, and the Westphalian Mythâ, International Organization, 55(2) (2001), 251â87. See also Randall Lesaffer, âLaw and history: law between past and presentâ, in Bart van Klink and Sanne Taekema (eds.), Law and Method: Interdisciplinary Research into Law (Tübingen: Mohr Siebeck, 2011), 133â52.
Jerry H. Bentley, âSea and Ocean Basins as Frameworks of Historical Analysisâ, Geographical Review, 89(2) (1999), 215â24. On spatial frameworks for legal analysis and comparison, see Dag Michaelsen, âMethodological perspectives in comparative legal history: an analytical approachâ in Moréteau, Masferrer and Modéer (eds.), Comparative Legal History, 103â4; See Anthony Anghie, âIdentifying regions in the history of international lawâ, in Fassbender and Peters (eds.), The Oxford Handbook of the History of International Law, 1058â78.
Bo J. Theutenberg, âMare Liberum et Mare Clausumâ, Arctic, 37(4) (1984), 481â92, at 484: âThe birth of so called modern international law was closely connected with the law of the sea: in fact, the first rules of modern international law were perhaps the rules governing the use of the seaâ. Cf. Randall Lesaffer, âThe classical law of nationsâ, in Orakhelashvili (ed.), Research Handbook on the Theory and History of International Law, 410; Alain Wijffels, âEarly-modern scholarship on international lawâ, ibid., 19â57.
For an example of this traditional view, see Jan H. W. Verzijl, Western European Influence on the Foundations of International Law, in International Law in Historical Perspective, i (Leiden: A. W. Sijthoff, 1968), 435â6: âInternational law as it now stands is essentially the product of the European mind and has practically been received [â¦] by American and Asiatic statesâ. For a more nuanced perspective, see Onuma Yasuaki, âWhen Was the Law of International Society Born? An Inquiry of the History of International Law from an Intercivilizational Perspectiveâ, Journal of the History of International Law, 2(1) (2000), 1â66. See also Alexander Pearce Higgins, âInternational law and the outer world, 1450â1648â, in John Holland Rose et al. (eds.), The Cambridge History of the British Empire. Vol 1: The Old Empire. From the Beginnings to 1783 (New York/Cambridge: Macmillan/University Press, 1929), 183â204.
Charles H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th Centuries) (Oxford: Clarendon Press, 1967); idem, The Law of Nations in Global History, edited by David Armitage and Jennifer Pitts (Oxford: University Press, 2017); Ram P. Anand, Origin and Development of the Law of the Sea. History of International Law Revisited (The Hague-Boston-London: M. Nijhoff, 1983); idem, âMaritime Practice in South-East Asia until 1600 A. D. and the Modern Law of the Seaâ, The International and Comparative Law Quarterly, 30(2) (1981), 440â54; idem, Studies in International Law and History. An Asian Perspective (Leiden/Boston: M. Nijhoff, 2004).
Hassan S. Khalilieh, Islamic Law of the Sea: Freedom of Navigation and Passage Rights in Islamic Thought (Cambridge: University Press, 2019); idem, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800â1050): The KitÄb Akriyat Al-Sufun Vis-Ã -Vis the Nomos Rhodion Nautikos (Leiden/Boston: Brill, 2006).
Ron Harris, Going the Distance: Eurasian Trade and the Rise of the Business Corporation, 1400â1700 (Princeton: University Press, 2020), 226â34; Abulafia, The Boundless Sea, 236â50; Louise Levathes, When China Ruled the Seas: The Treasure Fleet of the Dragon Throne 1405â1433 (New York: Simon & Schuster, 1994); Ying Liu, Zhongping Chen and Gregory Blue (eds.), Zheng Heâs Maritime Voyages (1405â1433) and Chinaâs Relations with the Indian Ocean World: A Multilingual Bibliography (Leiden: Brill, 2014); Edward L. Dreyer, Zheng He: China and the Oceans in the Early Ming Dynasty, 1405â1433 (New York: Pearson Longman, 2006); Kuei-Sheng Chang, âThe Maritime Scene in China at the Dawn of Great European Discoveriesâ, Journal of the American Oriental Society, 94(3) (1974), 347â59; Robert Finlay, âThe Voyages of Zheng He: Ideology, State Power, and Maritime Trade in Ming Chinaâ, Journal of The Historical Society, 8(3) (2008), 327â47; Craig A. Lockard, ââThe Sea Common to Allâ; Maritime Frontiers, Port Cities, and Chinese Traders in the Southeast Asian Age of Commerce, ca. 1400â1750â, Journal of World History, 21(2) (2010), 219â47, at 227â8.
Bederman, âThe Seaâ, 360â1. See also Martti Koskenniemi, âHistories of International Law: Dealing with Eurocentrismâ, Rechtsgeschichte. Zeitschrift des Max-Planck-Instituts für europäische Rechtsgeschichte, 19 (2011), 152â76.
Surabhi Ranganathan, âDecolonization and International Law: Putting the Ocean on the Mapâ, Journal of the History of International Law, 23(1) (2020), 161â83; idem, âGlobal Commonsâ, European Journal of International Law, 27(3) (2016), 693â717. See also Renisa Mawani, âThe law of the seaâ, in Peter D. Burdon and James Martel (eds.), The Routledge Handbook of Law and the Anthropocene (London: Routledge, 2023), 115â29.
Didier Billion and Christophe Ventura, Désoccidentalisation. Repenser lâordre du monde (Agone: Marseille, 2023).
Ignacio de la Rasilla del Moral, International Law and History: Modern Interfaces (Cambridge: University Press, 2021), 11â40; Raphael Cahen, Frederik Dhondt and Elisabetta Fiocchi Malaspina, âLâessor récent de lâhistoire du droit internationalâ, Clio@Thémis, 18 (2020), 1â7; Bardo Fassbender and Anne Peters, âIntroduction: Towards a global history of international lawâ, in idem (eds.), The Oxford Handbook of the History of International Law, 1â24; Randall Lesaffer and Anne Peters (eds.), The Historiography of International Law, vol. i, The Cambridge History of International Law (Cambridge: University Press, 2024).
Frederik Dhondt, âLooking Beyond the Tip of the Iceberg: Diplomatic Praxis and Legal Culture in the History of Public International Lawâ, Rechtskultur, 2 (2013), 31â42; Frederik Dhondt, âThe historiography of international law on the European continentâ, in Lesaffer and Peters (eds.), The Historiography of International Law, 244â72; Lesaffer, âLaw and historyâ, 133â52; Cahen, Dhondt and Fiocchi Malaspina, âLâessor récentâ, 1â7; Anthony Carty, âDoctrine versus state practiceâ, in Fassbender and Peters (eds.), The Oxford Handbook of the History of International Law, 972â96.
Dirk Heirbaut, âReading past legal texts, a tale of two legal histories. Some personal reflections on the methodology of legal historyâ, in Dag Michalsen (ed.), Reading Past Legal Texts (Oslo: Unipax, 2006), 92â3; de la Rasilla del Moral, International Law and History, 41â74.
Afterall, international law might still today be characterised as an âart of persuasionâ, see Iain Scobbie, âRhetoric, persuasion, and interpretation in international lawâ, in Andrea Bianchi, Daniel Peat and Matthew Windsor (eds.), Interpretation in International Law (Oxford: University Press, 2015), 61â77.
Heirbaut, âReading past legal textsâ, 94.
Ibid., 92â4.
Matthew Craven, âIntroduction: international law and its historiesâ, in idem, Malgosia Fitzmaurice and Maria Vogiatzi (eds.), Time, History and International Law (Leiden: Brill, 2007), 7.
Lesaffer, âLaw and historyâ, 133â4.
Ibid., 134â5.
Ibid., 136.
Randall Lesaffer, âInternational law and its history: the story of an unrequited loveâ, in Craven, Fitzmaurice and Vogiatzi (eds.), Time, History and International Law, 34â5. Lesaffer specifies that the issue is not the evolutionary approach in itself, but the fact that it often involves âevolutional history of the worst kindâ, which âleads to anachronistic interpretations of historical phenomena, clouds historical realities that bear no fruit in our own times and gives no information about the historical context of the phenomenon one claims to recogniseâ, besides it describes âhistory in terms of similarities with or differences from the present, and not in terms of what it wasâ. Cf. Craven, âIntroduction: International law and its historiesâ, ibid., 9; Heirbaut, âReading past legal textsâ, 92â5.
Robert W. Gordon, Taming the Past: Essays on Law in History and History in Law (Cambridge: University Press, 2018), 17â49.
Andrew Fitzmaurice, âContext in the History of International Lawâ, Journal of the History of International Law, 20(1) (2018), 5â30, at 13.
Arnold Raestad, La mer territoriale, études historiques et juridiques (Paris: A. Pedone Ãditeur, 1913).
Anne Orford, âOn International Legal Methodâ, London Review of International Lawâ, 1(1) (2013), 166â97.
Ibid., 172â4.
For instance, see Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870â1960 (Cambridge: University Press, 2001), 1â10.
Idem, âVitoria and Us. Thoughts on Critical Histories of International Lawâ, Rechtsgeschichte, Journal of the Max Planck Institute for European Legal History, 22 (2014), 123â4.
Ibid., 124.
Lauren Benton, âBeyond Anachronism: Histories of International Law and Global Legal Politicsâ, Journal of the History of International Law, 21(1) (2019), 7â40.
Ibid., 33. Cf. Kate Purcell, Ê»On the Uses and Advantages of Genealogy for International Lawʼ, Leiden Journal of International Law, 33(1) (2020), 13â35.
See also Fitzmaurice, âContext in the History of International Lawâ, 5â30; Valentina Vadi, âInternational Law and Its Histories: Methodological Risks and Opportunitiesâ, Harvard International Law Journal, 58(2) (2017), 311â52; idem, âPerspective and Scale in the Architecture of International Legal Historyâ, European Journal of International Law, 30(1) (2019), 53â71; Matilda Arvidsson and Miriam Bak McKenna, Ê»The Turn to History in International Law and the Sources Doctrine: Critical Approaches and Methodological Imaginariesʼ, Leiden Journal of International Law, 33(1) (2020), 37â56; Thomas Skouteris, âEngaging history in international lawâ, in David Kennedy and José M. Beneyto (eds.), New Approaches to International Law: The European and American Experiences (The Hague: T.M.C. Asser Press, 2012), 99â121.
Dyson, âComparative legal history: methodology for morphologyâ, in Moréteau, Masferrer and Modéer (eds.), Comparative Legal History, 110â38.
Lesaffer, âInternational law and its historyâ, 34â5; Georg Cavaller, âVitoria, Grotius, Pufendorf, Wolff and Vattel: Accomplices of European Colonialism and Exploitation or True Cosmopolitans?â, The Journal of the History of International Law, 10(2) (2008), 207â8; Fitzmaurice, âContext in the History of International Lawâ, 12.
Lesaffer, âLaw and historyâ, 144. Dirk Heirbaut adds that traditional legal history often sees law as âundisturbed by social, economic, political or religious changes. The context is unimportant. In legal history this leads to a legal history without historyâ. In âReading past legal textsâ, 92.
Ibidem.
Martti Koskenniemi, âHistories of International Law: Dealing with Eurocentrismâ, 161. See also idem, From Apology to Utopia. The Structure of International Legal Argument. Reissue with a New Epilogue (Cambridge: University Press, 2006).
Ibidem. Cf. Orakhelashvili, âInternational law, international politics and ideologyâ, 240â79.
For the complete list of the doctrinal works analysed in the book i refer to the bibliography, section 1.1.
Wilhelm G. Grewe, Fontes Historiae Iuris Gentium, ii vols (Berlin-New York: De Gruyter, 1992).
Frances G. Davenport, European Treaties Bearing on the History of the United States and its Dependencies to 1648 (Washington: The Carnegie Institution, 1917); Jean du Mont de Carels-Kroon, Corps universel diplomatique du droit des gens; contenant un recueil des traitez dâalliance, de paix, de treve, de neutralité, de commerce, dâéchange ... (Amsterdam: chez P. Brunel, R. et G. Wetstein [etc.], 1726â31) (cud in footnotes).
Alfonso GarcÃa-Gallo, Las bulas de Alejandro vi y el ordenamiento juriίdico de la expansioón portuguesa y castellana en Ãfrica e Indias (Madrid: Instituto Nacional de Estudios JuriÃdicos, 1958).
António J. Dias Dinis (ed.), Monumenta Henricina, colectaânea documental relativa ao Infante D. Henrique (Coimbra: Oficinas Gráficas de Atlântida, 1960â74), 15 vols; MartÃn Fernández de Navarrete, Colección de los viajes y descubrimientos que hicieron por mar los españoles desde fines del siglo xv: con varios documentos ..., ii (Documentos de Colon y de las primeras poblaciones) (Madrid: Imprimeria Nacional, 1859); José R. Coelho, Alguns documentos do Archivo Nacional da Torre do Tombo ácerca das navegações e conquistas portuguezas⦠(Lisboa: Imprensa Nacional, 1892); Vitorino M. Godinho, Documentos sôbre a expansão portuguesa, vols. iâii (Lisboa: Editorial Gleba, 1943â44); idem, Documentos sôbre a expansão portuguesa (Lisboa: Edições Cosmos, 1956).
Manuel F. de Barros y Sousa, Visconde de Santarem, Quadro elementar das relações polÃticas e diplomáticas de Portugal com as diversas potencias do mundo, desde o principio da monarchia Portugueza até aos nossos dias, vol. xv (Lisboa: Tipographia da Academia Real das Sciencas, 1865).
Lars R. Laursen, Danmark-Norges Traktater 1523â1750. Med dertil hørende Aktstykker, 11 dele i 12 bind (København: Gad, 1905â49).
Pierre Chaplais, English Medieval Diplomatic Practice (London: Her Majestyâs Stationery Office, 1982).
Reginald G. Marsden, Documents Relating to the Law and Custom of the Sea, 1205â1767, 2 vols. (London: printed for the Navy Records Society, 1915â16); John Rushworth, Historical Collections of Private Passages of State, Weighty Matters in Law, Remarkable Proceedings in Five Parliaments: Beginning the Sixteenth Year of King James. Anno 1618, And Ending the Fifth Year of King Charles [sic], Anno 1629 (London: printed by Thomas Newcomb for George Thomason, 1659â1701).
Thomas Rymer, Foedera, conventiones, literæ, et cujuscunque generis acta publica, inter reges Angliæ et alios quosvis imperatores, reges, pontifices, principes, vel communitates, ab ineunte sæculo duodecimo, viz. ab anno 1101, ad nostra usque tempora habita aut tractate ... (Hagæ Comitis: apud Joannem Neaulme, 1742); idem (ed.), Foedera, conventiones, literæ, et cujuscunque generis acta publica, inter reges Angliæ et alios [â¦], 4 vols., revised ed. by Adam F. Clarke and Fred Hoolbroke (London, 1816â69).
Eugenio Alberi (ed.), Relazioni degli ambasciatori Veneti al Senato (Firenze: Societaà editrice fiorentina [etc.], 1839â63); Guglielmo Berchet and Nicolò Barozzi (eds.), Relazioni degli Stati Europei lette al Senato dagli ambasciatori veneti nel secolo decimosettimo (Venezia: P. Naratovich, 1856â77).
Raestad, La mer territoriale.
Thomas W. Fulton, The Sovereignty of the Sea (London-Edinburgh: William Blackwood & Sons, 1911); Potter, The Freedom of the Sea.
A similar remark applies to: Francis T. Piggott, The Freedom of the Seas. Historically Treated (London: H.M. Stationery Office, 1920); Luis GarcÃa Arias, Historia del principio de la libertad de los mares (Santiago: Editora Universitaria Compostelana, 1946); Gundolf Fahl, El principio de la libertad de los mares. Práctica de los Estados de 1493 a 1648 (Madrid: Instituto de Estudios PolÃticos, 1974).
Anand, Origin and Development. On twail and post-colonial approaches to the history of international law, see de la Rasilla del Moral, International Law and History, 117â51. Cf. Alexandrowicz, History of the Law of Nations in the East Indies.
Michael J. Feakes, Formative Influences on the Evolution of International Law: A Case Study of Territorial Waters (1550â1650) (Ph.D. dissertation, University of Hull, 1994).
Guillaume Calafat, Une mer jalousée. Contribution à lâhistoire de la souveraineté (Méditerranée, xviie siècle) (Paris: Ãditions du Seuil, 2019).
Khalilieh, Islamic Law of the Sea, ch. 2, 95â169.