• Since the ancient times , navigation on the sea and

oceans was free to all mankind.

• As no rule existed in the ancient period in the law of
nations , the emperors in the past, had claimed to be the
kings of the different oceans but real claims to the
sovereignty over parts of the open sea began to be
established in the second half of the Middle Ages(period
of European history from 5th to 15th century).

• In fact then a conviction had developed among the

nations that they could claim sovereignty over the parts
of the open sea. Hence, the Baltic Sea was shared by
Sweden and Denmark. Etc.
• As there was no consistent rule in the 15th century about
the relations with the European World and the new
continents and they were continuously engaged in
religious wars against Muslims, some of the frontal
European states like Portugal and Spain adopted the
convenient method that the Christian states had the right
to occupy and possess the lands of the heathen (one who
adheres to religion that does not ack God of
Christianity)and the infidel (a person who has no religious
belief) without any regard for the rights of the native
people concerned. They also claimed that as head of
Christian Church, the Pope had the right to allot temporal
sovereignty to any land not possessed by a Christian ruler.
• On March 4, 1493 Pope Alexander VI divided the
world between Spain and Portugal and defined a
line of demarcation running 100 leagues west of
the Azores and Cape Verde islands and granted to
Spain all lands west of it and to Portugal all lands
of its east.
• He thus gave Spain the right and jurisdiction of
Pacific Ocean and the gulf of Mexico and made
Portugal lord of the Atlantic , south of Morocco
and the Indian Ocean. This was supposed to be
an absolute and incontestable legal title in 15th
century Europe.
• Due to the decline of Portuguese empire, a
slow trend of navigation over sea came to
being.

• Portugal came under the Spanish crown in

1580 and the Spanish Court was totally
engrossed in the administration of its
immense American empire and in European
politics and conflicts. It, however, paid a little
attention to Portuguese and her interests.
They were left to their fate.
• During the early struggles and conflicts with Portugal, a great
controversy had arisen amongst the Dutch (people of Netherland)
about the lawlessness of prize from captured Portuguese ships.

• But it became an acute problem in 1604 when Admiral Jacob Van

Heemskerck captured a richly laden Portuguese ship in the Strait of
Malacca and brought her home.

• The ship Santa Catherina, was proposed to be sold in Amsterdum as a

prize and its proceeds were distributed as part of the profits of the East
India Company. Many shareholders were gratified but others refused to
favour such an act on the ground that plunder won in a war was little
befitting to merchants especially when taken from a large number of
innocent persons.

• These men were also influenced by the long standing friendship with
the Portuguese and it was said to have commenced 4 centuries earlier.
• In 1604-05, Grotius wrote a treatise “De Jure
Praedae”, a commentary on Law of Prize, in order
to defend the Dutch company and to show that war
might rightly be waged against the prize taken from
the Portuguese who had wrongly tried to exclude
the Dutch and others from the Indian trade.

• The whole manuscript of “De Jure Praedae”

remained in abeyance till 1864, when it was
discovered by the Hague publisher, Martinus
Nijhoff, who published it in 1868.
• However, it is important to note that although this
commentary remained unpublished till 1868 and only a
part of it, Chapter XII was published unanimously in
1609 with the cover of “ Mare Liberum”.

It was revised and amplified by Grotius in the form of

his most famous treaties “ De Jure Beli ac Pacis” ( on the
law of war and peace) which is said to be the first
systematic treatise on international law, and earned him
the title of “ the father of modern international law” .

The influence of this book was so great that it came to

be accepted as the law of Nations in Europe.
• The year , 1609 saw a truce being concluded between Spain
and Netherlands and it provided that while Spain should not
molest Dutch commerce with independent and neutral
nations in India, the Dutch should not enter any of the
Portuguese or Spanish ports in that country.

• The Dutch company which had more than two score ships of
600-800 tons in the Indian ocean , equally adapted for
commerce as well as war, had no desire to accept the truce.

• On the eve of the truce, Grotius was persuaded by the

company to publish in Dutch the 12 th chapter of this book
under the title of “ Mare Liberum” with such changes as were
necessary to enable it to stand alone.
• During the period of Hugo Grotius the
European powers were challenging the
Portuguese supremacy in the Indian ocean on
the basis of Mare Liberum and at the same
time each one was also struggling to create a
monopoly for itself and was trying to keep the
others out.
• At that time it was prevalent in Europe for
states to claim jurisdiction in wide seas
around them.

• For instance in 1609 King James I of England

had not only ordered all ships passing through
the English seas to lower their top-sails and
strike their flags , as an acknowledgement of
English sovereignty but prohibited fishing by
foreigners along British and Irish Coasts.
• Among various replies to the concept of sea of Grotius , the most
formidable reply and challenge to his theory of Mare Liberum,
came from John Selden, a brilliant British scholar .

• John Seldon wrote it on the behest of the English Crown and his
comprehensive treatise “ Mare Clausum Sen de Dominis Maris
Libri Duo” ( the closed sea or two books concerning the rule of
sea), was published in 1635 by the express command of King
Charles in order to manifest the right and dominion of Royal
Progenitors in the seas which in compasses these as “ Realms and
Dominions of Great Britain and Ireland.”

• But the book remained unpublished for several years for political
reasons and was later recast, revised and enlarged at the request
of King Charles and published under his order depicting and
explaining the official English position on the subject.
• Selden relied in his book on historical data and state
practices at that time in Europe , and tried to prove that
the sea was not everywhere common and had in fact
been appropriated in many cases.
• Among almost all the old nations, he asserted, it was
customary to admit private dominion in the sea and
many of them exercised maritime sovereignty.

• Selden mentioned numerous European states which

claimed sovereignty in large areas of the seas but he
omitted the various counties in the East Indies and India
which never claimed in ancient period their sovereignty
over the open sea.
• Selden was in agreement with Grotius in
denying the sovereignty claimed by Portugal
and Spain in the great oceans not because it
was opposed to nature and reason but
because it was not founded on legitimate
title and these nations did not have a
sufficient naval force to assert occupation and
maintain it.
• After 1805, Britain was unquestionably supreme at sea.
• In the 19th century Great Britain played a pivotal role
for the observance of freedom of seas in the general
interest of the world community.
• Undoubtedly it was a big contribution for the welfare
of the mankind as well as to the development of law of
the sea.

1617-East India Coy in India followed by Dutch

1764 onwards British rule in India began and by 1850 it
ruled entire India
• The doctrines propounded by jurists like Grotius and others paid a deep
impact but the modern law of sea did not really develop until England stood
as the supreme naval power in Europe and Asia in the first half of 19 th century.

• Before this period, European countries had not accepted the Asian maritime
practices of freedom of the seas and the maritime trade and each country was
busy in protecting its narrow national interests during intercourse among
themselves.

• But after British supremacy was established in Asia, European interests were
identified with those of England and European maritime practices came to be
generally accepted and consolidated under the support and protection of
Great Britain.

• There was , however, no dispute regarding the freedoms of the seas as these
were universally recognized but the uniformity of many maritime rules was
still to be achieved for the world community.
• It may, however, be pointed out that the central core of the maritime
law as developed by the European states ,viz, freedom of seas , was
similar to the maritime practices of the states of Asian Continent.

• The concept of freedom of navigation and trade in the Indian Ocean

and south East Asia as practiced there for centuries, was the
precursor of the modern law of the sea in that in provided the
impetus to Grotius in formulating his doctrine of “ Mare Liberum”.

• But the freedom of seas as it came to be accepted and practiced in

the 19th century and later , was cast in the mould of European
interests and was used for their purposes to the detriment of the
interests of Asia and indeed for the joint exploitation of Asian
countries. The other rules of maritime practices were developed
according to the needs and interest of the European Powers at
various times since the last half of 19th century.