Splash247: Four centuries of maritime freedom at stake

If you are reading this, you are either involved in the business of merchant shipping or you are interested in it. Which means that, by definition, you assume that the freedom of the seas is a good thing.

You will have spotted that this is an essay in defence of the UN Convention on the Law of the Sea (UNCLOS), in the light of the extraordinary behaviour of the United States of America in the past few weeks and the extraordinary behaviour of the Islamic Republic of Iran in response to it.

Why do we think we all have the right to sail merchant ships and pleasure craft (but not necessarily warships, slavers or pirate ships) over what we call the ‘High Seas’ from one port to another? It seems obvious to us now, but it was not – and importantly it is now threatened by people who have more power than sense.

I would like to commend to you Hugo Grotius, Cornelis van Bijnkershoek, and Ferdinand Galiami and to thank Horatio Nelson, John Barrow, Richard Cobden and John Bright. And their supporters.

That is a reasonably short list of the people who created the European concept of the freedom of the seas. Not the East Asian concept of it because that seems to have been there more or less all the time up to the start of the nineteenth century, when the two ideas coalesced.

Hugo Grotius, 1583 to 1645, was the Dutch jurist who suggested the idea of the freedom of the seas in his book Mare Liberum, published in 1609. The idea that the high seas belong to everyone and to no-one and that anyone has the right to put to sea and sail over the seas starts with that book.  

Cornelis van Bijnkershoek modified Grotius’ idea by suggesting that a state with a sea coast had some rights over the waters that it could effectively control and it was Ferdinand Galiami who worked out that if the king of France put his very best cannon on the top of Cap Gris Nez and fired it towards England, the shot would travel three miles. Hence the three mile limit.

Nations like the Dutch, who wanted to trade internationally but who were unable to command the seas with their own navy, favoured the idea of mare liberum. Nations like the Spanish, the French and the British, who thought that they could command the seas, didn’t care for it.

Nelson comes into this story because in a series of spectacular naval victories culminating in October 1805 he established that the British Royal Navy could command the seas, and nobody else could, which mean that in 1815 John Barrow found himself running a Royal Navy with no enemies left to fight, and in urgent need of something to do.  

The solution was to chart the oceans of the world, and to enforce the abolition of piracy and of the trade in slaves, all of which ‘Barrow’s Boys’ in the Royal Navy proceeded to do, and from 1849 they added a fourth, because in that year Britain, converted by Cobden and Bright, with help from David Ricardo, to the idea of free trade, repealed the British Navigation Acts and expected everyone else to do the same.

In 1939, the Royal Navy was still the most powerful in the world and still doing those four things, but by 1945 Britain had run out of money. Over the next 20 years Britain gradually gave up playing policeman on the high seas (as late as the early 1960s British warships were still carrying out anti-slaving patrols and anti-piracy operations) and the US chose to play policeman instead, perhaps thinking that that is what the nation with the most powerful navy ought to do.  

Perhaps because the US flag merchant marine was already in serious decline following WW2, the US Navy doesn’t seem to have been as involved with merchant shipping as the Royal Navy had been.

And that, if we add ships made of metal and propelled by external and internal combustion engines, open registers, tax avoidance, and the use of computers and containers, is the story of merchant shipping as we know it, in which we, unlike our ancestors, don’t have to worry about most of the stuff on the old Lloyd’s SG Form:

“TOUCHING the adventures and Perils which we the Assurers are consented to bear and to take upon us in this Voyage, they are of the Seas, Men-of-War, Fire, Enemies, Pirates, Rovers, Thieves, Jettisons, Letters of Mart and Countermart, Surprisals, Takings at Sea, Arrests, Restraints and Detainments of all Kings, Princes and People, of what Nation, Condition, or Quality soever, Barratry of the Master and Mariners, and all other Perils, Losses and Misfortunes that have or shall come to the Hurt, Detriment, or Damage of the said Goods and Merchandises and Ship, &c, or any Part thereof…”;    

And now, just a few years after we (the United States always excepted) tidied up the whole thing and wrote it down as UNCLOS and swore to uphold it, we are about to throw it all away.

Coming next, the kingdom of Denmark and an awful precedent.