Freedom of Navigation - History

History

-.-Up to the early modern age, international maritime law was governed by customs that were sometimes codified as for example in the 14th-century Catalan Consolat de Mar (Customs of the sea). Such customs governed as a practical matter the adjudication of cases about the capture of goods on the high seas by privateers in Prize courts. The rule that can be distilled from the Consolato (and other contemporary codes) is: "enemy goods can be captured on neutral ships and neutral goods are free on board enemy's ships" The first part of this rule implies that neutral shipping is not inviolable in time of war (though the second part implies that goods of neutral owners are), and hence contradicts what we now call "freedom of navigation." This doctrine (which we will refer to as the consolato-rule for short) was long observed by England (later Great Britain), France and Spain among the major naval powers.

However, beginning in the 17th century the Dutch Republic, then the dominant European carrier, championed a different rule, known as "free ship (makes) free goods." This doctrine stated that even enemy goods (always excepting contraband) are inviolate in neutral bottoms, though sometimes (not always) the corollary of the rule was that neutral goods carried by enemy ships could be confiscated. The first part of this rule, however, makes neutral ships inviolable and is hence the core of the freedom-of-navigation doctrine. As this doctrine went against international custom, it had to be embodied in bilateral treaties to become part of international law. The earliest example of such a treaty is actually one concluded between king Henry IV of France and the Ottoman Porte in 1609, though that was followed in 1612 by one between the Porte and the Dutch Republic. Once the Eighty Years' War between Spain and the Dutch Republic had ended (during which Spain defended their claim of sovereignty over the oceans against the Dutch claim of "freeedom of the high seas," as developed in Hugo Grotius' Mare Liberum) the two concluded a treaty of commerce in which "free ship, free goods" was enshrined. The Dutch Republic subsequently concluded bilateral treaties with most other European countries, containing the "free ship, free goods" principle, though it sometimes had to use force to obtain this concession, as against England in the Treaty of Breda (1667) and again in the Treaty of Westminster (1674). England, however, also held fast to the Consolato-rule in relations with other countries, as did France, until this country in 1744 relented and extended the privilege to the by then resolutely-neutral Dutch.

The Dutch had in this way, by using treaty-law, built up a web of bilateral treaties that, on a reciprocal basis, extended the privilege of "freedom of navigation" to their ships in the many 18th-century European wars in which they remained neutral (serving all belligerents with their shipping services). Great Britain in particular chafed under this arrangement, as she was the dominant naval power in the 18th century and the Dutch privilege undermined the effectiveness of her naval blockades. Matters came to a head during the War of the American Revolution when the Dutch, shielded by the 1674 Anglo-Dutch treaty, supplied both the Americans and the French. The British made extensive use of their "right of search" of Dutch ships and this led to the Affair of Fielding and Bylandt in which a British naval squadron in peace time arrested a Dutch convoy, despite the objections of its Dutch naval escort.

Soon thereafter the British abrogated the 1674 treaty and that might have meant the death of the "free ship, free goods" doctrine if not empress Catherine II of Russia had taken up the torch around the same time. In March, 1780 she published a manifesto in which (among other things) she claimed the "free ship, free goods" principle as a fundamental right of neutral states. To defend that principle, she formed the First League of Armed Neutrality to which the Dutch adhered at the end of the year (which sparked the Fourth Anglo-Dutch War). The principles from her manifesto were soon adhered to, not only by the members of the League, but by France, Spain and the new American Republic also (though, as belligerents, they could not become members of the League).

Nevertheless, as a principle of international law (apart from treaty law) "free ship, free goods" was soon again overturned by the practice of both sides in the French Revolutionary Wars of the turn of the 19th century. For instance, in the jurisprudence of the American courts of the early 19th-century, the Consolato-principle was universally applied in cases not covered by treaties. On the other hand, the U.S. government made it a steadfast practice to enshrine the "free ship, free goods" principle in the treaties of amity and commerce it concluded with other countries (starting with the 1778 one with France and the 1782 one with the Dutch Republic). In other words, the American view (following the British practice) was that at that time Consolato was customary international law, which however, could be superseded by treaty law on a bilateral basis. The U.S., however, earnestly strove for the substitution of Consolato by "free ship" in customary law also.

This happy state of affairs came about when Great Britain finally gave up its resistance to the principles, first formulated by empress Catherine in 1780, and acquiesced in the 1856 Paris Declaration Respecting Maritime Law, which enshrined "free ship makes free goods," while rejecting "enemy ship makes enemy goods." The Declaration was signed by the major powers (except the U.S.A., ironically) and soon adhered to by most other powers. The new rule (a combination of the "best" parts of Consolato and "free ship") became:"A neutral flag covers enemy's goods (except contraband); neutral goods are not liable to seizure under the enemy's flag."

In the 20th century this new principle became part of the broader body of laws of the sea currently embodied in the United Nations Convention on the Law of the Sea, as President Woodrow Wilson advocated in point 2 of his Fourteen Points (see Freedom of the seas). The United States has not ratified the 1982 treaty, though it is a party to the preceding 1958 Convention on the High Seas. As the reason for non-ratification is not related to the principle of freedom of navigation, which the U.S. now considers to be part of customary international law, this does not imply that the U.S. does not consider itself bound by the principle.