''Mare clausum'' (

legal Latin A number of Latin terms are used in legal terminology and legal maxims. This is a partial list of these terms, which are wholly or substantially drawn from Latin. __TOC__ Common law Civil law Ecclesiastical law See also * B ...

meaning "closed sea") is a term used in

international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...

to mention a sea, ocean or other navigable

body of water A body of water or waterbody (often spelled water body) is any significant accumulation of water on the surface of Earth or another planet. The term most often refers to oceans, seas, and lakes, but it includes smaller pools of water such a ...

under the

jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...

of a

state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States * ''Our S ...

that is closed or not accessible to other states. ''Mare clausum'' is an exception to ''

mare liberum ''Mare Liberum'' (or ''The Freedom of the Seas'') is a book in Latin on international law written by the Dutch jurist and philosopher Hugo Grotius, first published in 1609. In ''The Free Sea'', Grotius formulated the new principle that the s ...

'' (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 The terms international waters or transboundary waters apply where any of the following types of bodies of water (or their drainage basins) transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed region ...

, oceans, seas, and waters outside national jurisdiction are open to navigation by all and referred to as "high seas" or ''

''.

Portugal Portugal, officially the Portuguese Republic ( pt, República Portuguesa, links=yes ), is a country whose mainland is located on the Iberian Peninsula of Southwestern Europe, and whose territory also includes the Atlantic archipelagos of ...

and

Spain , image_flag = Bandera de España.svg , image_coat = Escudo de España (mazonado).svg , national_motto = ''Plus ultra'' (Latin)(English: "Further Beyond") , national_anthem = (English: "Royal March") , i ...

defended a ''Mare clausum'' policy during the

age of discovery The Age of Discovery (or the Age of Exploration), also known as the early modern period, was a period largely overlapping with the Age of Sail, approximately from the 15th century to the 17th century in European history, during which seafarin ...

. This was soon challenged by other European nations.

History

From 30 BC to 117 AD the

Roman Empire The Roman Empire ( la, Imperium Romanum ; grc-gre, Βασιλεία τῶν Ῥωμαίων, Basileía tôn Rhōmaíōn) was the post- Republican period of ancient Rome. As a polity, it included large territorial holdings around the Mediter ...

came to surround the

Mediterranean The Mediterranean Sea is a sea connected to the Atlantic Ocean, surrounded by the Mediterranean Basin and almost completely enclosed by land: on the north by Western Europe, Western and Southern Europe and Anatolia, on the south by North Africa ...

by controlling most of its coasts. Romans started then to name this sea ''

mare nostrum ''Mare Nostrum'' (; Latin: "Our Sea") was a Roman name for the Mediterranean Sea. In Classical Latin, it would have been pronounced , and in Ecclesiastical Latin, it is pronounced . In the decades following the 1861 unification of Italy, Ital ...

'' (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 In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the post-classical period of global history. It began with the fall of the Western Roman Empire ...

maritime republics The maritime republics ( it, repubbliche marinare), also called merchant republics ( it, repubbliche mercantili), were Thalassocracy, thalassocratic city-states of the Mediterranean Basin during the Middle Ages. Being a significant presence in I ...

like the

Republic of Genoa The Republic of Genoa ( lij, Repúbrica de Zêna ; it, Repubblica di Genova; la, Res Publica Ianuensis) was a medieval and early modern maritime republic from the 11th century to 1797 in Liguria on the northwestern Italian coast. During the La ...

and the

Republic of Venice The Republic of Venice ( vec, Repùblega de Venèsia) or Venetian Republic ( vec, Repùblega Vèneta, links=no), traditionally known as La Serenissima ( en, Most Serene Republic of Venice, italics=yes; vec, Serenìsima Repùblega de Venèsia, ...

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.

''Mare clausum'' in the Age of Discovery

During the

Age of Discovery The Age of Discovery (or the Age of Exploration), also known as the early modern period, was a period largely overlapping with the Age of Sail, approximately from the 15th century to the 17th century in European history, during which seafarin ...

, 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 The Treaty of Alcáçovas (also known as Treaty or Peace of Alcáçovas-Toledo) was signed on 4 September 1479 between the Catholic Monarchs of Castile and Aragon on one side and Afonso V and his son, Prince John of Portugal, on the other sid ...

in 1479 and the Treaty of Tordesillas in 1494. IberianMareClausum

The papacy helped legitimize and strengthen these claims, since

Pope Nicholas V Pope Nicholas V ( la, Nicholaus V; it, Niccolò V; 13 November 1397 – 24 March 1455), born Tommaso Parentucelli, was head of the Catholic Church and ruler of the Papal States from 6 March 1447 until his death in March 1455. Pope Eugene made ...

by the bull

Romanus Pontifex (from Latin: "The Roman Pontiff") are papal bulls issued in 1436 by Pope Eugenius IV and in 1455 by Pope Nicholas V praising catholic King Afonso V of Portugal for his battles against the Muslims, endorsing his military expeditions into Weste ...

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 A privateer is a private person or ship that engages in maritime warfare under a commission of war. Since robbery under arms was a common aspect of seaborne trade, until the early 19th century all merchant ships carried arms. A sovereign or deleg ...

and

piracy Piracy is an act of robbery or criminal violence by ship or boat-borne attackers upon another ship or a coastal area, typically with the goal of stealing cargo and other valuable goods. Those who conduct acts of piracy are called pirates, v ...

of routes, products and colonies. In the 16th and 17th century Spain considered the

Pacific Ocean The Pacific Ocean is the largest and deepest of Earth's five oceanic divisions. It extends from the Arctic Ocean in the north to the Southern Ocean (or, depending on definition, to Antarctica) in the south, and is bounded by the contin ...

a ''Mare clausum'' – a sea closed to other naval powers. As the only known entrance from the Atlantic, the Strait of Magellan was at times patrolled by fleets sent to prevent entrance of non-Spanish ships. On the western end of the Pacific Ocean the Dutch threatened the

Spanish Philippines Spanish might refer to: * Items from or related to Spain: **Spaniards are a nation and ethnic group indigenous to Spain **Spanish language, spoken in Spain and many Latin American countries **Spanish cuisine Other places * Spanish, Ontario, Cana ...

. In the 1580s Spain attempted to settle and fortify the strait to deny entry to foreign navigation.

''Mare clausum versus Mare liberum''

In February 1603 the seizing of 1500-ton loaded Portuguese '' Santa Catarina'' by the

Dutch East India Company The United East India Company ( nl, Verenigde Oostindische Compagnie, the VOC) was a chartered company established on the 20th March 1602 by the States General of the Netherlands amalgamating existing companies into the first joint-stock ...

led to scandal with a public judicial hearing and a campaign to sway public (and international) opinion. The representatives of the Company then called Hugo Grotius, a jurist of the

Dutch Republic The United Provinces of the Netherlands, also known as the (Seven) United Provinces, officially as the Republic of the Seven United Netherlands (Dutch: ''Republiek der Zeven Verenigde Nederlanden''), and commonly referred to in historiography ...

, to draft a defence of the seizure. In 1609 Hugo Grotius sought to ground his defense of the seizure in terms of the natural principles of justice; Grotius formulated a new principle that the sea was international territory and all nations were free to use it for seafaring trade. One chapter of his long theory-laden treatise entitled '' De Jure Prædæ'' made it to the press in the form of the influential pamphlet, ''

Mare Liberum ''Mare Liberum'' (or ''The Freedom of the Seas'') is a book in Latin on international law written by the Dutch jurist and philosopher Hugo Grotius, first published in 1609. In ''The Free Sea'', Grotius formulated the new principle that the s ...

'' (''The Free Sea''). In it Grotius, by claiming ' free seas', provided suitable ideological justification for the Dutch breaking up of various trade

monopolies A monopoly (from Greek el, μόνος, mónos, single, alone, label=none and el, πωλεῖν, pōleîn, to sell, label=none), as described by Irving Fisher, is a market with the "absence of competition", creating a situation where a speci ...

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 Maritime may refer to: Geography * Maritime Alps, a mountain range in the southwestern part of the Alps * Maritime Region, a region in Togo * Maritime Southeast Asia * The Maritimes, the Canadian provinces of Nova Scotia, New Brunswick, and Princ ...

.António Costa Canas, "Mare Clausum", 2003

in Portuguese England, competing fiercely with the Dutch for domination of world trade, opposed Grotius' ideas and claimed

sovereignty Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...

over the waters around the

British Isles The British Isles are a group of islands in the North Atlantic Ocean off the north-western coast of continental Europe, consisting of the islands of Great Britain, Ireland, the Isle of Man, the Inner and Outer Hebrides, the Northern Isles, ...

. In ''Mare clausum'' (1635)

John Selden John Selden (16 December 1584 – 30 November 1654) was an English jurist, a scholar of England's ancient laws and constitution and scholar of Jewish law. He was known as a polymath; John Milton hailed Selden in 1644 as "the chief of learned ...

coined the term, endeavoring to prove that the sea was in practice virtually as capable of appropriation as terrestrial territory. As conflicting claims grew out of the controversy, maritime states came to moderate their demands and base their maritime claims on the principle that it extended seawards from land. A workable formula was found by

Cornelius van Bynkershoek Cornelis van Bijnkershoek (a.k.a. ''Cornelius van Bynkershoek'') (29 May 1673, in Middelburg – 16 April 1743, in The Hague) was a Dutch jurist and legal theorist who was educated at the University of Franeker. After two years study, he began to ...

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 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 r ...

References

Bibliography

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