Freedom of the Seas
Freedom of the Seas
Armin Rappaport and
William Earl Weeks
Freedom of the seas is one of the original and most important principles in the history of American foreign policy. American statesmen have, in essence, defined it as the right of all peoples to travel unmolested in international waters in both war and peace. Historically, it has been one of the chief means by which the United States has influenced international affairs; the vigorous assertion of the principle of freedom of the seas has been a major cause of four armed conflicts: the Quasi-War with France in 1798, the Barbary Wars, the War of 1812, and World War I.
ORIGINS OF THE CONCEPT OF FREEDOM OF THE SEAS
The concept of freedom of the seas predates the American nation, arising in the European world amid the heightened rivalries of the European state system in the fifteenth and sixteenth centuries. It was on the principle of freedom of the seas that King Francis I of France disputed the exclusive right in certain seas that the pope had granted to Spain and Portugal in the fifteenth century. Later, Queen Elizabeth I of England proclaimed: "The use of the sea and air is common to all; neither can any title to the ocean belong to any people or private man." Perhaps the most notable assertion of the principle of freedom of the seas was the book Mare Liberum (1609) by Dutch jurist Hugo Grotius. Grotius defined the seas as being, like the air, limitless and therefore common to all people. Despite Grotius's efforts, European mercantilist powers in the seventeenth and eighteenth centuries generally sought to control as much of the world's oceans as they could.
From the beginning of the American nation, U.S. political leaders championed the view that the seas ought to be free in war as well as in peace. As John Adams said in 1783:
The United States of America have propagated far and wide in Europe the ideas of the liberty of navigation and commerce. The powers of Europe, however, cannot agree as yet, in adopting them to their full extent…. For my own part, I think nature wiser than all the courts and estates of the world, and, therefore, I wish all her seas and rivers upon the whole globe free.
Benjamin Franklin was of the same mind. In 1782 he said, "In general, I would only observe that commerce, consisting in a mutual exchange of the necessaries of life, the more free and unrestrained it is the more it flourishes and the happier are all the nations concerned in it." The American assertion of the principle of freedom of the seas thus became closely connected to the principle of freedom of commerce. Applied in wartime, these principles translated into the right of citizens of neutral states to carry on their normal trading pursuits without interference by the belligerents, unless that trade was in a narrowly defined list of war goods destined for a belligerent. Throughout its history, with two exceptions—the Civil War and World War I— the United States has been the principal proponent and defender of that view.
The American position on freedom of the seas was first expressed on 18 July 1776, when John Adams presented to the Continental Congress the report of a committee of which he was chairman and whose other members were Benjamin Franklin, John Dickinson, Benjamin Harrison, and Robert Morris. The committee had been appointed some five weeks earlier and had been charged with preparing a "plan of treaties to be entered into with foreign states and kingdoms." Its report proposed a model set of articles concerning neutral commerce in wartime to be included in treaties of amity and commerce with other powers. On 17 September of the same year, Congress adopted the committee's proposals, which thereupon became the first official American statement on the freedom of the seas.
The proposal contained four articles: first, should one of the signatories be at war and the other neutral, the citizens of the neutral could trade with the enemies of the belligerent in all items except contraband of war, the latter being limited to arms, munitions of war, and horses (food and naval stores were specifically excluded); second, citizens of the neutral could trade with the enemies of the belligerent in noncontraband not only from enemy ports to neutral ports but also between ports of an enemy; third, enemy noncontraband found in neutral ships was not liable to confiscation by the belligerent ("free ships make free goods"); and fourth, neutral goods, whether contraband or noncontraband, found in enemy vessels were liable to confiscation.
These principles, known collectively as the Treaty Plan of 1776, and clearly favorable to neutrals, were not invented by Adams and his colleagues. For more than a century they had been a part of the international maritime scene and had been practiced by neutrals and belligerents during the great dynastic wars of the seventeenth and eighteenth centuries, albeit with occasional modifications. They had also been incorporated in several treaties between European powers, most notably France and Great Britain in 1655, 1686, and 1713.
It is not surprising that Adams's committee proposed, and the Congress accepted, the maritime principles of 1776. For one thing, they were a natural and logical concomitant of the Declaration of Independence. It seemed only reasonable that the "unalienable right to life, liberty, and the pursuit of happiness" should extend to the high seas. More important, the principles were consistent with the visions that the Founders had for the new republic's future. As Adams noted, the country was to "be as little as possible entangled in the politics and controversies of European nations." It would take no part in Europe's wars. Rather, American merchants would be the great neutral carriers of the needs of the belligerents, and for that role they would need the protection of the maritime principles of 1776. Should the United States find itself a belligerent at some future time, a liberal interpretation of the rights of neutrals would still be useful and important. The Founders never expected that the American navy would be large and powerful enough to protect American shipping in wartime—neutral vessels would have to be depended upon to handle American commerce, and for that they would need the cover of the principles of 1776.
American diplomats succeeded in incorporating the cherished maritime articles into the first bilateral treaty signed by the new republic. In 1778 the Franco-American Treaty of Amity and Commerce contained almost without change the language and the substance of the Treaty Plan. But that was only the beginning of the nearly universal acceptance of the American position. Three more agreements—with the Netherlands in 1782, with Sweden in 1783, and with Prussia in 1785— also included the maritime articles of 1776.
Meanwhile, in 1780 the Russian empress, Catherine the Great, had announced that her country's neutral commerce in the war then raging between England and its former colonies would be governed by four principles. Three of them—free ships make free goods, freedom of neutrals to trade between ports of a belligerent, and contraband limited to arms and munitions— came directly from the Treaty Plan of 1776. The fourth—that a port be considered legally blockaded only if there were a sufficient number of vessels at its mouth to make entry dangerous—had not been dealt with by Adams's committee in 1776. It was, however, included in a new treaty plan adopted by the United States in 1784. At Russia's invitation, seven other nations adhered to Catherine's principles. Thus, of the great powers only Great Britain refused to be bound by the liberal maritime principles. Hard though they tried, the American commissioners negotiating the peace that ended the war between mother country and colonies could not get the principles incorporated into the final treaty. English statesmen, envisioning their country more often belligerent than neutral—and big-navy belligerent, at that— rejected the American overtures. The treaty said nothing about the rights of neutrals.
AFFIRMING FREEDOM OF THE SEAS IN THE EARLY NATIONAL PERIOD
A challenge to the principle of freedom of the seas arose soon after the conclusion of the revolutionary war. In 1784 American commercial shipping in the Mediterranean, lacking the protection of the British navy, came under attack from the North African kingdoms along what was known as the Barbary Coast. In 1794, Congress, tired of paying tribute to the Barbary pirates and urged on by New England merchants devastated by ship seizures, passed the Naval Act of 1794, reestablishing the U.S. Navy and authorizing the construction of six frigates to defend American interests in the Mediterranean. President Thomas Jefferson, without seeking congressional approval, dispatched several naval campaigns against the North African kingdoms culminating in the conquest of Tripoli in 1805. In 1815 a U.S. naval squadron bombarded Algiers into agreeing to end its attacks on American shipping. Thus was the principle of freedom of the seas successfully asserted by force.
The wars of the French revolutionary and Napoleonic eras posed an even greater challenge to the principle of freedom of the seas. When war erupted between France and Great Britain in 1793, the United States at once declared neutrality and soon became the chief neutral supplier of belligerent needs. France was legally bound by the terms of the Treaty of 1778 to treat American commerce according to the principles of 1776. Britain, having entered into no agreement with the United States on neutral and belligerent rights, was free to halt, by all means possible, trade between France and America. Unwilling to fight the war at so serious a disadvantage, French warships soon violated the provisions of the 1778 treaty and treated American commerce as the British did. When England and the United States signed a convention in 1794 (Jay's Treaty) that specifically included naval stores on the contraband list and stated that enemy goods were not protected by the neutral flag, France was furious that American diplomats had not forced Britain to accept the principles of 1776. The result was an intensification of French depredations upon American neutral commerce that led in 1798 to an undeclared Franco-American maritime war. Known as the Quasi-War, it lasted until 1800.
France and England made peace in 1802, but war broke out again in the following year. This second phase of the great struggle was marked by intense efforts by each belligerent to prevent neutrals from trading with its enemy. As the chief neutral suppliers and carriers, American citizens suffered severe restrictions on their trade. In 1812 the United States went to war, in part to defend its citizens' neutral rights.
It was true, of course, that the war was fought only against Britain, but not because France's conduct was less reprehensible. Congress, in fact, gave serious consideration to declaring war against both nations. In the end, however, a war against two enemies was unthinkable and Britain was chosen over France for the very good reason that its navy, not France's, dominated the seas and committed the largest number of violations of American neutrality. The point to remember is that the nation risked its lives, its treasure, even its continued existence, in order to defend the rights of its citizens to travel and trade unmolested on the high seas in wartime.
President James Madison, when touching upon maritime reasons for requesting hostilities, referred specifically only to "mock blockades" and to "violations of our coasts" as evidence of Britain's perfidious conduct. More generally, he spoke of Britain "laying waste our neutral trade" and plundering "our commerce … in every sea." He surely had in mind three British practices, all contrary to the principles of 1776. One was the interdiction of American trade between ports of the enemy, which England justified on the basis of the Rule of the War of 1756. That rule, established during the French and Indian War of 1754–1763, declared that a trade closed in peacetime could not be opened in wartime. In conformity with mercantilist doctrine, France, as well as every other European nation, prohibited foreigners from engaging in the trade between ports. In wartime, however, when the superior British navy made it unsafe for French vessels to carry the traffic, it was thrown open to non-French bottoms. Thus, the rule deprived American merchants of a lucrative trade. When they sought to evade it by touching at a neutral port (most often in the United States) en route between the two enemy ports, the British were not fooled. Their cruisers picked up the American vessels and their prize courts condemned them on the grounds that the ultimate destination was, in fact, an enemy port and that the voyage between the two enemy ports was "a continuous voyage only ostensibly broken at a neutral port." The two other British practices were the inclusion of naval stores and foodstuffs on the contraband list and the confiscation of enemy goods found in neutral ships.
Now a belligerent, the United States made every effort "to pay the strictest regard to the rights of neutral powers." Naval commanders were instructed "to give them [neutrals] as little molestation or interruption as will consist with the right of ascertaining their neutral character," and the orders were carried out. Neutral rights were respected. Insofar as the war was fought in defense of American neutral rights it proved futile, for the treaty ending the war made no mention of the subject.
Between the end of the war with Britain and the opening of the Civil War, the United States continued to push for the acceptance of the principles of 1776 and the provision on blockade in the Treaty Plan of 1784. To some observers it seemed anomalous that the United States, on the threshold of becoming a significant naval power, should continue to support liberal maritime principles. A clue to the riddle was provided by Secretary of State Henry Clay, who noted in 1828 that the United States did not expect to become involved in maritime wars because its "prosperity is so evidently connected with the preservation of peace." And, he implied, even if the country should become involved in a war—and as a bignavy belligerent—it would value "the general cause of humanity and civilization [which] will be promoted by the adoption of these maritime principles [above] pecuniary interest." Thus, between 1824 and 1850 the United States concluded treaties with ten Latin American republics and one with Prussia incorporating the liberal maritime principles. Efforts to commit Great Britain to the principles remained unsuccessful.
The War with Mexico (1846–1848) provided the United States with the occasion to practice what it preached. Its policy toward neutrals was governed by the instruction of the secretary of the navy to commanding officers of U.S. naval forces in the Pacific, issued on 24 December 1846: "The President has desired to subject neutral commerce to the least possible inconvenience or obstruction compatible with the exercise of the belligerent right necessary to the success of our military operations." One year later, explaining the U.S. position to the newly appointed commander in the Pacific, the secretary wrote: "No present advantage … should induce us to depart from that liberal interpretation of the laws of nations which we have always contended for as protecting the interests of neutrals against the violent claims of belligerents." Indeed, in the matter of blockade, contraband, and enemy goods on neutral ships, the United States adhered strictly to the principles of 1776 and 1784.
Six years after the end of the Mexican conflict, the Crimean War broke out and the United States again found itself a neutral—but with two important differences from the period of 1793 to 1812. This time Great Britain and France were on the same side, fighting Russia, and they made clear their intention to pursue a liberal course toward neutral commerce insofar as neutral goods on enemy ships and enemy goods on neutral ships were concerned. In both instances the goods, except for contraband, were to be free from seizure. Russia adopted the same principles and incorporated them in a convention signed with the United States in July 1854.
Encouraged by the action of the three belligerents, especially by that of Great Britain, and recognizing that for Britain and France the policies on neutral rights covered the duration of the war only, the U.S. government sought to incorporate the rules in a multilateral treaty and make them a principle of international law. Secretary of State William L. Marcy, in instructions sent to the American ministers in Paris, London, and St. Petersburg in 1854, enclosed a draft treaty, noting: "The United States are desirous to unite with other powers in a declaration that … [the rules] be observed by each hereafter, as a rule of international law." In his annual message to Congress in December of the same year, President Franklin Pierce voiced the same hope.
The three belligerents did, in fact, "unite with other powers in a declaration" on maritime law at the peace conference that met in Paris in the winter and spring of 1856. Four principles constituted the Declaration of Paris, signed on 16 April 1856 by representatives of Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey: first, privateering is, and remains, abolished; second, the neutral flag covers enemy goods, except for contraband; third, neutral goods, except for contraband, are not liable to capture under the enemy flag; and fourth, blockades, in order to be binding, must be effective.
The Declaration of Paris proved highly gratifying to the United States. The liberal view on neutral rights that it had so vigorously championed for more than half a century had at last been written, if only in part, into international law. Particularly welcome was the end of British opposition. Still, the United States found itself in the curious situation of refusing to become a party to the declaration. The reason lay in the article on privateering. As Secretary of State Marcy pointed out in a lengthy note to the French minister in Washington, the strong-navy powers could afford to renounce privateering because they could effectively prey upon enemy commerce with their public armed vessels; small-navy states, like the United States, lacking an adequate number of warships, had to rely upon private armed vessels to destroy the enemy's goods. Only if the words "and that the private property of the subjects or citizens of a belligerent on the high seas shall be exempted from seizure by public armed vessels of the other belligerent, except it be contraband" were added to the first article would the United States sign the declaration.
That principle—the complete immunity of (noncontraband) private property—had been advanced by the United States for many years. It was a logical extension of the liberal position on neutral rights. First suggested by Benjamin Franklin in 1780 and again in 1782 for inclusion in the peace treaty ending the War of Independence, it was included in the Treaty Plan of 1784 and incorporated into the Treaty of Amity and Commerce of 1785 with Prussia.
The signatories of the declaration did not summarily reject the American amendment. They deferred action pending a careful examination of the problem and the opportunity to consult among themselves. By March 1857, when President James Buchanan assumed office, no action had been taken and the new secretary of state, Lewis Cass, told the American ministers to suspend negotiations on the subject until the president had time to study "the questions involved." The president, preoccupied with problems closer to home, never did get around to the matter; thus, the United States lost the opportunity to incorporate into a multilateral treaty its historic and traditional position. Because the four principles of the declaration were considered indivisible by the signatories, the United States could not adhere to numbers two, three, and four while rejecting the first.
REVERSING COURSE IN THE CIVIL WAR
Viewed from a different perspective, the failure of the United States to become a party to the Declaration of Paris proved advantageous, for in the Civil War, which broke out in 1861, the United States remained free of any international legal commitments regarding neutral rights vis-à-vis the major naval powers of the time. For the first time in its history, the United States was the preponderant belligerent naval power, and that freedom would permit it to pursue any course at sea calculated to increase the chances of victory. As a matter of fact, the United States did expand its belligerent rights during the war and did constrict those rights of neutrals that it had championed since the earliest days of the Republic.
Early in the war, Secretary of State William H. Seward informed the principal neutral powers that American policy toward their commerce would be governed by the second, third, and fourth articles of the Declaration of Paris. And the United States did, during the course of the war, respect the principles of "free ships make free goods" and the freedom from seizure of neutral goods (not contraband) in enemy ships. On blockade, however, the United States strayed far from its traditional position. It is true that Seward insisted that a blockade not maintained by an adequate force need not be respected and that every effort was made to station a sufficient number of vessels at the blockaded ports to prevent entry and exit. It is true, too, that the British government accepted the existence of an effective (and, hence, a legal) blockade and respected it. But it is also true that in an effort to make the blockade more effective, the United States indulged in some highly questionable practices that the British had used when a belligerent in the French revolutionary and Napoleonic wars (1793–1815) and against which the United States had protested vigorously. One, called the long-range blockade, was accomplished by "flying squadrons" of swift warships that patrolled the sea-lanes and intercepted neutral vessels far from a blockaded port, seizing them if there were grounds for believing their destination to be a blockaded port. Another was to place neutral ports (in Britain, the Bahamas, Mexico, and the West Indies) under surveillance and capture vessels as they left the protection of territorial waters, presumably for a port under blockade. In addition, Union warships took as prizes on the high seas neutral vessels coming from and going to neutral ports, on the ground that the ship and its cargo were ultimately destined for a blockaded port. American prize courts upheld the seizures, considering the voyage between the neutral port of origin and the blockaded port as one continuous, albeit broken, voyage. The doctrine was also applied to contraband. It was strange to find the United States applying the doctrine of continuous voyage, which had been so objectionable when practiced by the British in the wars against France.
In the matter of contraband, the United States did not publish an official list; but the secretary of the Treasury, in a circular sent to collectors of customs at several Southern ports where the blockade had been lifted, enumerated articles considered contraband and therefore banned from the ports. Among them were arms, munitions, and war supplies, as was to be expected. But the list also included naval stores and a host of other items, such as ardent spirits, corn, bullion, printing presses, coal, iron, lead, copper, tin, brass, telegraphic instruments, wire, and marine engines—and those were not to be expected. They flew in the face of the historic American resistance to an expanded contraband list.
Why the United States turned its back on history and tradition, and exchanged the role of champion of the rights of neutrals for that of defender of the rights of belligerents, can be explained only in terms of a sacrifice of principle for expediency. Winning the war was the overriding factor in determining the nation's policy. Nothing else mattered.
EXPANDING THE FREEDOM OF THE SEAS: 1865–1914
From the end of the Civil War to the opening of World War I in 1914, the United States did not concern itself greatly with the freedom of the seas. It was a neutral in three wars during the period (Franco-Prussian, Boer, Russo-Japanese), but none of them presented any serious problems on the seas. The United States was a belligerent once during this period (against Spain), but that conflict was too brief to raise any serious maritime issues. There was, however, one significant development in American policy toward neutral commerce during the Spanish-American War—the division of the contraband list into absolute and conditional contraband. The former included articles primarily and ordinarily used for military purposes and destined for an enemy country; the latter included articles that might be used for purposes of war or peace, according to circumstances, and would be subject to seizure only if actually and specifically consigned to the military or naval forces of an enemy. In the latter category, foodstuffs and coal were the most important items. This division became a permanent feature of American policy when it was incorporated into the United States Naval War Code, adopted in June 1900.
If there was one preoccupation of American diplomacy concerning neutral and belligerent rights and duties, it was the effort to secure international acceptance of the principle of the immunity of private property at sea. The adoption of such a broad principle, long sought by American diplomats, would have applied to all private property, both neutral and belligerent, replacing the more specific provisions covering neutrals, such as "free ships make free goods." It was the subject of negotiation with the North German Confederation in 1870, and was incorporated into a treaty of amity and commerce with Italy in 1871. In December 1898, President William McKinley asked Congress for authority "to correspond with the governments of the principal maritime powers with a view of incorporating into the permanent law of civilized nations the principle of the exemption of all private property at sea, not contraband of war, from capture or destruction by belligerent powers." Five years later his successor, Theodore Roosevelt, reiterated the plea. In the instructions prepared for the U.S. delegation to the First Hague Conference in 1899, the chief item was on immunity of private property at sea; the instructions for the delegates to the Second Hague Conference in 1907 included a congressional resolution of 1904 supporting the same principle. All these efforts proved in vain, however. The United States did not succeed in gaining international acceptance of the doctrine.
The United States did, nonetheless, have the satisfaction of seeing many of its other principles adopted at an international congress that met in London during the winter of 1908–1909, convened at the call of Great Britain. The ten maritime powers represented (Germany, England, Austria-Hungary, the United States, Spain, France, Italy, Japan, the Netherlands, Russia) agreed on a code of prize law that would be administered by an international prize court hearing appeals from national prize courts set up by belligerents. In seventy-one articles contained in ten chapters, precise and detailed rules were established governing blockade, contraband, nonneutral service, treatment of prizes, determination of a vessel's character, convoy, transfers to a neutral flag, and visit and search of vessels. Taken together, the rules that made up the Declaration of London were favorable to neutrals, which may account for the fact that the British House of Lords refused to ratify them (after the House of Commons had given its approval). Thus, they were not binding on any of the other signatories.
WORLD WAR I: A CRITICAL TURNING POINT
The United States sought, at the outbreak of war in August 1914, to have the warring nations accept the Declaration of London as the guide in their treatment of neutrals. Germany was willing, but England was not. As the preponderant navy belligerent, England was not willing to surrender the advantage to be derived from the lack of legal restrictions.
The plight of the neutrals, particularly the United States—the one most heavily involved in the carrying trade—was cruel indeed. As in the titanic struggle between France and England from 1793 to 1815, the only rule followed by the belligerents was expediency. No holds were barred, no measure was neglected that might contribute to the defeat of the enemy. Each contestant used to the utmost the weapon it knew best. German submarines stalked the seas, but mainly the waters surrounding the British Isles, sinking every vessel it could catch—enemy or neutral— carrying supplies to Britain. The British surface navy roamed the oceans enforcing measures designed to halt all traffic to Germany. Those measures were numerous and comprehensive, and reflected the cumulative experience of a nation for which the sea had been a lifeline for three centuries. The contraband list was extended to include the widest variety of articles and the distinction between absolute and conditional categories, which Britain had adopted at the same time as the United States, was gradually blurred until it disappeared altogether.
The blockade of Germany was not effective, in that ships were not stationed at German ports to prevent entry and exit but were, rather, placed in the North Sea and The Downs, a roadstead in the English Channel, from which the traffic to the Continent was more easily controlled. It must be pointed out that the two belligerents were under no legal obligation to treat American commerce according to American wishes. There was no body of international maritime law binding the warring countries (the Declaration of London not being in force and not having been signed by the United States), nor were they bound by any bilateral treaties with the United States concerning the treatment of neutrals. Visit and search were not conducted at the point of interception on the high seas; neutral vessels were taken into British or other Allied ports for a detailed and careful examination of cargo and papers. Neutral mails were opened and inspected for contraband and for clues as to destination of cargo. The principle of "free ships make free goods" gave way to the practice of detaining all goods on neutral vessels of enemy origin or ownership. Neutral firms that dealt with the enemy were put on a blacklist and forbidden to trade with the Allies, while neutral vessels that did not conform to certain conditions laid down by the British were subjected to "bunker control" and denied coal, oil, and other refueling supplies. Finally, the doctrine of continuous voyage, hitherto applied to absolute contraband only, and where the second leg of the broken voyage was by sea, was applied to conditional contraband, and where the second leg was over a contiguous land frontier.
The United States, caught between the two belligerents, protested both the violations of its neutral rights and the destruction of the doctrine of the freedom of the seas. The protests to Germany were sharper, more insistent, and more demanding than those to England, although the policies of both were equally oppressive and damaging. The reason for such discrimination was stated by President Woodrow Wilson when he compared the British to thieves and the Germans to murderers. The former, he said, seized property, a matter that could be adjudicated at the end of the war, while the latter took lives, which were lost forever. There was, of course, another cause for the partiality to the British: Americans were entangled, emotionally and economically, with the British, which made a rupture of relations with them unthinkable. The United States finally went to war against Germany in 1917 to uphold its rights as a neutral and to defend the principle of the freedom of the seas, not only for itself but for other nations as well (the "challenge is to all mankind," said the president). The move might be viewed as the fulfillment of the task set out by Secretary of State Robert Lansing in a note sent to the British government in October 1915 that described the nation as "championing the integrity of neutrals … [which] the United States unhesitatingly assumes."
The deep concern the United States exhibited for its neutral rights, as well as for the rights of others, between 1914 and 1917 vanished the moment the country joined the Allied cause. Indeed, as a belligerent the United States outdid its allies in trampling upon neutral rights. The justification of a harsh policy toward neutrals lay in the necessity for winning the war and defeating the enemy of mankind's freedom—on the seas as elsewhere. The neutrals were not impressed by America's beneficence; they were shocked. As one Danish newspaper noted, "It was as a spokesman of the freedom of the seas and the rights of neutral countries that America came into conflict with Germany, and finally went to war. It would be a strange debut for her to start by committing exactly the same kind of outrage which Mr. Wilson pretended to fight against in the interest of the neutrals." As a matter of fact, the belligerent policy of the United States need not have been so unexpected. It was heralded in a remark made by Secretary Lansing in 1915. He noted: "It was of the highest importance that we should not become a belligerent with our hands tied too tightly by what we had written. We would presumably wish to adopt some of the policies and practices which the British had adopted, though certainly not all of them, for our object would be the same as theirs … to break the power of Germany."
Almost every practice against which the United States protested as a neutral it pursued as a belligerent—the blacklist, bunker control, sweeping contraband list, postal censorship, and broadest interpretation of the doctrine of continuous voyage—rather as it had done during the Civil War. In fairness, it must be noted, however, that certain British practices were not adopted by belligerent America. The United States did not join Britain in the blockade or in the routing of neutral vessels into ports to facilitate searching them.
As World War I came to an end, the American view of the freedom of the seas underwent a considerable change. It came about as a consequence of Woodrow Wilson's dream of a new postwar international order. In that order the concept of freedom of the seas would not be used solely to describe the problem of the rights of neutrals to trade in wartime; it would have a much broader meaning. As stated by the president in a message to the Senate on 22 January 1917, it would mean the right of every nation to have free access to "the open paths of the world's commerce." And, he went on to say, "The paths of the sea must alike in law and in fact be free. The freedom of the seas is the sine qua non of peace, equality, and co-operation." One year later, on 8 January 1918, Wilson further elaborated his concept of freedom of the seas in his Fourteen Points. The second of them called for "absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war, except as the seas may be closed in whole or in part by international action for the enforcement of international covenants." It should be noted that by the last qualifying phrase, Wilson indicated that restrictions on freedom of the seas could be effected only by the League of Nations, the new international organization for maintaining the peace, when acting to chastise a peace-breaking nation.
Unfortunately, certain nations were not prepared to accept so broad and bold a definition of freedom of the seas. Britain, particularly, balked at its being incorporated into the peace treaty. The British could not afford to leave so vital an element of their national security in any hands other than their own. "This point we cannot accept under any conditions," said Prime Minister David Lloyd George. "It means that the power of blockade goes; Germany has been broken almost as much by the blockade as by military methods; if this power is to be handed over to the League of Nations and Great Britain were fighting for her life, no League of Nations could prevent her from defending herself." France and Italy took much the same view. Said the French premier Georges Clemenceau, "War would not be war if there was freedom of the seas."
For his part, Wilson would not "consent to take part in the negotiation of a peace which did not include freedom of the seas [and] … unless Lloyd George would make some reasonable concessions on his attitude upon the freedom of the seas, all hope of Anglo-Saxon unity would be at an end." To avoid such a breakdown among the Allies, which would give Germany so great an advantage, the British finally accepted the point as a basis for discussion at the conference, but on the understanding that they "reserve to themselves complete freedom on this subject when they enter the Peace Conference." The point was never seriously discussed at the conference, and the treaty ending the war made no mention of it. Thus, Wilson's effort to redefine the principle came to naught.
Between the two world wars the freedom of the seas did not figure prominently in international affairs. After the breakdown of the Geneva Naval Conference in 1927, Senator William E. Borah of Idaho called for a conference of the great powers to codify the rights of neutrals and belligerents on the high seas in wartime, but nothing came of it. It was clear that the United States and Britain would not agree—the former supporting the liberal view of neutral rights and the latter championing a broad interpretation of the rights of belligerents. In 1929 Senator Arthur Capper of Kansas introduced a resolution in the Senate that would have revived in some measure the Wilsonian dream of the United States joining other nations in denying the freedom of the seas to an aggressor. Appreciating the fact that America could not participate in the League of Nations' enforcement machinery by virtue of nonmembership, he proposed that should the League of Nations declare a nation to be a violator of the peace, the United States would withhold from that country "arms, munitions, implements of war, or other articles for use in war." Thus, there would be no danger of the United States clashing with League of Nations states in the protection of its neutral rights. Sentiment in America, however, was not ready for a policy of taking sides in an international struggle. A similar effort in 1933 by the U.S. representative at the Geneva Disarmament Conference failed for the same reason.
FREEDOM OF THE SEAS IN THE AMERICAN CENTURY
The outbreak of World War II in 1939 found the United States, for the first time in its history, a neutral unconcerned with the defense of its rights at sea. It had, by drastic legislation enacted between 1935 and 1939, voluntarily withdrawn from the business of supplying the needs of the belligerents. It had also curtailed the travel of Americans on belligerent passenger vessels and had circumscribed trade with neutrals by keeping American ships out of certain areas, designated as combat zones, adjacent to neutral ports. It had, in short, surrendered its traditional insistence that the rights of neutrals be respected.
Before long, however, the country abandoned the role of passive and withdrawn neutral and became virtually a co-belligerent, supplying the Allied powers with the sinews of war. The restrictive legislation was repealed in November 1941 and a vast flow of American goods in American ships started moving across the Atlantic. Now the term "freedom of the seas" was once more on the lips of American statesmen as German submarines, operating in wolf packs, attacked the Anglo-American maritime lifeline. President Franklin D. Roosevelt said in May 1941:
All freedom—meaning freedom to live and not freedom to conquer and subjugate other peoples—depends on the freedom of the seas—for our own shipping, for the commerce of our sister Republics, for the right of all nations to use the highways of world trade, and for our own safety…. As President of a united, determined people, I say solemnly: we reassert the ancient American doctrine of the freedom of the seas.
He had already, in September 1940, labeled submarine warfare as defiance of the "historic American policy" for which, "generation after generation, America has battled … that no nation has the right to make the broad oceans of the world … unsafe for the commerce of others." And in August 1941, when Roosevelt and Prime Minister Winston Churchill drew up the Atlantic Charter, a blueprint for the postwar world, the seventh of eight principles was the hope that "such a peace should enable all men to traverse the high seas and oceans without hindrance." Thus, the two leaders reiterated the broad concept of the freedom of the seas first proposed by Woodrow Wilson.
Like the Treaty of Versailles, which ended World War I, the several treaties negotiated after World War II made no mention of the freedom of the seas; and as the Covenant of the League of Nations had ignored the principle, so did the Charter of the United Nations. Thus, the hope of Franklin Roosevelt suffered the same fate as did the dream of Woodrow Wilson. The unrestricted right of all people to enjoy the freedom of the seas is still not guaranteed by international agreement. Indeed, since the end of World War II the United States has on three occasions taken actions that tended to limit the use of the seas by other nations. The first time was in June 1950, at the outbreak of the Korean War. President Harry S. Truman ordered the Seventh Fleet to patrol the Formosa Strait to prevent the Chinese communists from attacking Formosa and to keep the forces of Chiang Kai-shek from mounting an assault on the mainland. The Soviet Union promptly labeled the action a blockade, which the United States as promptly denied. As evidence to support its contention, America pointed to the fact that commercial traffic in the strait was unimpeded and untouched. The interdiction applied only to naval forces.
The second occasion came in October 1962, when President John F. Kennedy, upon learning that the Soviet Union had built missile sites in Cuba and had supplied Cuban premier Fidel Castro with missiles, proclaimed his intention "to interdict … delivery of offensive weapons and associated material to Cuba." He called the policy a "strict quarantine," yet it had all the markings of a blockade. Vessels were to be stopped, visited, and searched within certain prescribed zones and along certain routes. The Soviets considered it a blockade and protested on the ground that a blockade could be instituted only in wartime. To escape that anomaly, American lawyers called it a "pacific blockade," which international law permits as a means for one nation to seek redress, short of war, from another. The legal difficulty surrounding the use of that term was that in a pacific blockade only the blockaded nation's ships could be stopped and seized—not those of a third party. In this instance Soviet ships were the object of search and seizure. Whatever the terminology, it was clear that the United States had used naval forces to interfere with shipping on the high seas, albeit for the lofty motive of self-defense.
The third example of postwar American practice centered on President Richard M. Nixon's mining of North Vietnamese ports in May 1972. Again there was confusion as to the legal status of the act. Nixon denied the Soviet allegation that it was a blockade. The New York Times called it a "semi-blockade." The difficulty was compounded by the fact that the action took place not on the high seas but within the "internal and claimed territorial waters of North Vietnam," to use the words of the Department of State's legal officer. And, indeed, there was no interference with freedom of navigation beyond North Vietnam's territorial waters. Judged by the classic nineteenth-century definition of blockade, the act could not be called a blockade. But by the mid-twentieth century, many of the traditional and historic concepts that made up the doctrine of the freedom of the seas were being altered to suit new conditions of international relations.
One major change concerned the extent of territorial waters. For centuries, the territorial waters of a state were calculated at three miles (a cannon's range). At a conference held in 1930 at The Hague for the codification of international law of the sea, the three-mile limit was adopted officially and the marginal sea was declared to belong to the state. At the same time, several nations, wishing to exploit, without competition from other nations, extensive fishing beds and mineral resources in the subsoil, made claims to a more extended area—up to two hundred miles. The United States made no such claims, but in 1945 President Truman announced the creation of "conservation zones in those areas of the high seas contiguous to the coasts of the United States" for the development of fishing. Similarly, the continental shelf in the same contiguous areas was to be exploited for its natural resources. No specific limits were put on the contiguous areas, but it was known that the government favored an extension of the territorial waters from three to twelve miles and the creation of an economic zone of two hundred miles.
THE UNITED NATIONS LAW OF THE SEA TREATY
To settle the problem, conferences were held at Geneva in 1958 and 1960 and at Caracas in 1974, but no agreement was reached. At Caracas the United States pushed the twelve-and two-hundred-mile limits, providing freedom of navigation and of scientific research in the economic zone was assured for all nations—"a balance between coastal states' rights and duties within the economic zone"—but some nations appeared hesitant about diluting their sovereignty in the zone.
Finally, in 1982 a comprehensive United Nations Law of the Sea Treaty agreement was reached that established the twelve-mile limit for territorial waters and the two-hundred-mile "exclusive economic zone" that the United States had pushed for. The historic pact deemed the world's oceans the "common heritage of mankind" and represented a dramatic shift away from Grotius's notion that the seas were free owing to their boundlessness. Now the seas were understood to be a zone of interdependence in which all nations (including landlocked ones) had a stake. Although the Law of the Sea Treaty substantially affirmed American notions about the freedom of the seas, the administrations of Ronald Reagan and George H. W. Bush refused to sign it because of restrictions it placed on private enterprise regarding deep seabed mining. In July 1994 the Clinton administration, after negotiations leading to the modification of the deep seabed mining provisions, signed the pact; the Senate, however, perceiving that the treaty still hindered the U.S. freedom of action on the high seas, refused to provide the two-thirds majority needed to ratify it. As of 2001 the United States was not a signatory to the treaty, which went into effect on 16 November 1994 after ratification by sixty nations.
DEFENDING FREEDOM OF THE SEAS INTO THE TWENTY-FIRST CENTURY
The expansion of territorial waters and exclusive economic zones by many nations since World War II encouraged some states to restrict in various ways free passage on the high seas, a phenomenon known as "creeping sovereignty." To resist what American diplomats termed the "excessive maritime claims" of certain states, the United States instituted in 1979 a freedom of navigation policy designed to assert its historic commitment to a broad definition of freedom of the seas. This policy aimed to meet encroachments on the right of passage either by sea or air by a three-pronged strategy of diplomatic protest, operational assertion, and bilateral or multilateral negotiation. The operational assertion part of the policy resulted in several high profile incidents including challenging in 1986 Libya's claim that the Gulf of Sidra was a historic inland sea subject to its complete control and the 1988 bumping of U.S. warships by Soviet naval vessels while exercising the right of "innocent passage" inside the twelve-mile territorial limit in the Black Sea. In 1989 the latter incident resulted in a joint statement signed by Secretary of State James A. Baker and Soviet foreign minister Eduard Schevardnadze affirming the right of American warships to conduct innocent passage through Soviet territorial seas.
For more than two hundred years, from the very beginning of the Republic, the tendency of American policy has been to enlarge rather than to restrict the rights of nations on the seas—that is, except in certain periods when the country was at war and the national interest dictated the extension of American rights at the expense of other nations. The determination and consistency with which the principle of freedom of the seas has been asserted is testimony to its central importance in the history of American foreign policy. It represents the effort to extend American notions of international law and universal human rights to the oceans of the world. It constitutes a massive de facto extension of American sovereignty to the watery borders of all nations. And throughout the nation's history and into the foreseeable future it has been and will be job of the U.S. Navy to enforce the principle of freedom of the seas.
Amacher, Ryan C., and Richard James Sweeney, eds. The Law of the Sea: U.S. Interests and Alternatives. Washington, D.C., 1976.
Borgese, Elisabeth Mann. The Drama of the Oceans. New York, 1975.
Charney, Jonathan I. "Law of the Sea: Breaking the Deadlock." Foreign Affairs 55 (1977).
Digest of United States Practice in International Law. 8 vols. Washington, D.C., 1973–1980. Contains documents and narrative describing United States policy.
Gidel, Gilbert. Le Droit international public de la mer. 3 vols. Châteauroux, France, 1932–1934. A monumental and exhaustive account of the law of the sea.
Hagan, Kenneth J. This People's Navy: The Making of American Sea Power. New York, 1991.
Howarth, Stephen. To Shining Sea: A History of the United States Navy, 1775–1991. New York, 1991.
Hyde, Charles C. International Law Chiefly as Interpreted and Applied by the United States. 2 vols. Boston, 1922. A classic and standard account that deals with a wide range of matters pertaining to the freedom of the seas.
Jessup, Philip C. Neutrality, Its History, Economics, and Law. 4 vols. New York, 1935–1936. An excellent account dealing with the practices of all the major maritime nations from the eighteenth century to the end of World War I.
Jia, Bing Bing. The Regime of Straits in International Law. New York, 1998. Gives detailed analysis of the new procedures governing passage through international straits.
Long, David F. Gold Braid and Foreign Relations: Diplomatic Activities of U.S. Naval Officers, 1798–1883. Annapolis, Md., 1988.
Moore, John Bassett, ed. A Digest of International Law. 8 vols. Washington, D.C., 1906. A comprehensive account that fully covers maritime matters and deals with all phases of international law as practiced by the United States. The Digest is not a narrative but a collection of documents and cases interspersed with comment; the work has been carried forward chronologically by Green Hackworth, 8 vols. (Washington, D.C., 1940–1944), and Marjorie Whiteman, 15 vols. (Washington, D.C., 1963–1973).
Roach, J. Ashley, and Robert W. Smith. United States Responses to Excessive Maritime Claims. 2d ed. The Hague, 1996. Provides a heavily documented analysis of the freedom of navigation policy.
Rothwell, Donald R., and Sam Bateman, eds. Navigational Rights and Freedoms and the New Law of the Sea. The Hague, 2000. Discusses the various aspects of the Law of the Sea Treaty.
Savage, Carlton. Policy of the United States Towards Maritime Commerce in War. 2 vols. Washington, D.C., 1934–1936. A narrative with documents that covers the period from 1776 to 1918, giving a clear and concise account.
Swing, Jon T. "Who Will Own the Oceans." Foreign Affairs 54 (1976).
Van Dyke, John M., et al, eds. Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony. Washington, D.C., 1993. Assesses the implications of the Law of the Sea Treaty on traditional notions of freedom of the seas.
Whipple, A. B. C. To the Shores of Tripoli: The Birth of the U.S. Navy and Marines. New York, 1991.
See also Blockades; Civil War Diplomacy; The Continental System; Embargoes and Sanctions; International Law; Neutrality .
LAW OF THE SEA TREATY: DEFINITIONS
"Innocent passage" means the right of warships, merchant ships, and fishing vessels to pass without warning the territorial waters of a state in a manner that is not—in the words of the Law of the Sea Treaty (part II, article 19/2)—"prejudicial to the peace, good order, or security of the coastal State." Beginning in the 1970s the United States vigorously resisted efforts to require warships, nuclear-powered vessels, or vessels carrying environmental hazards to give notification prior to passing through the territorial waters of a sovereign state.
"Right of transit passage" refers to the principle articulated in the Law of the Sea Treaty (part III, article 38) guaranteeing all vessels and aircraft the right to pass through or over straits less than twenty-four miles wide at their narrowest point, that is to say, straits in which the twelve-mile territorial sea claim may have territorialized waters that formerly were international. Such straits include Gibraltar, Hormuz in the Persian Gulf, and Malacca in the South Pacific.
"Archipelagic sea-lanes passage" applies the principle of right of transit passage to archipelagoes, most importantly Indonesia and the Philippines. It guarantees unmolested passage for ships and aircraft through and over archipelagic waters, defined as the area encompassed by the drawing of baselines around the outermost islands of an archipelago. Archipelagic sea-lane passage is guaranteed in part IV of the Law of the Sea Treaty.
Freedom of the Seas
FREEDOM OF THE SEAS
FREEDOM OF THE SEAS is a principle that governs unrestricted access to the high seas and to waters outside of national territory. First established by the Romans, it was challenged in the sixteenth century to secure trade and by a Papal Bull that sought to divide the oceans between Portugal and Spain. During the eighteenth century, the principle again became widely accepted when the definition of territorial waters was extended to include a three-mile zone. While the United States strongly took the position that neutral ships should be allowed to carry goods for belligerents in times of war, other nations enforced rules of contraband (mostly defined as military stores) and blockade.
This became an important issue during the wars after the French Revolution when Great Britain and France imposed maritime blockades. To force these nations to change their policies (and also to end British impressment on American ships), the United States passed the Embargo Act (1807) and the Nonintercourse Act (1809). After France declared it would lift its blockade, and when Great Britain did not follow suit within a three-month period as demanded by President James Madison, the United States declared war on Great Britain in June 1812.
The United States accepted the concepts of contraband and blockade as legitimate during the Civil War but shied away from capturing Confederate diplomats off of neutral vessels during the Trent Affair. As long as the United States was a neutral during World War I and World War II, it protested the extensive blockades against Germany and very liberal British definitions of contraband. President Franklin D. Roosevelt, nonetheless, established "maritime control areas" at the beginning of World War II that extended into the high seas. In both wars, activities of German U-boats against neutrals provoked sharp American protest: by President Woodrow Wilson after the sinking of the Lusitania in 1915, and by Roosevelt in September 1941 after the torpedoing of American ships.
The first major challenge to the freedom of the seas principle after World War II was President Harry S. Truman's 1945 announcement extending U.S. jurisdiction to natural resources on the continental shelf. Other nations followed by extending their territorial waters, some of them as far as 200 nautical miles. A 300-mile maritime defense zone around the American continents, established by the Rio Pact of 1947, was cited by the John F. Kennedy administration to legitimize the "naval quarantine" during the Cuban Missile Crisis in 1962. The Third United Nations Conference on the Law of the Sea agreed upon a 12-mile territorial limit and a 200-mile exclusive economic zone in December 1982.
Barnett, Roger W. "U.S. Strategy, Freedom of the Seas, Sovereignty, and Crisis Management." Strategic Review 20, no. 1 (Winter 1992): 32–41.
Potter, Pitman B. The Freedom of the Seas in History, Law, and Politics. New York: Longmans, Green, 1924.
Warren, Gordon H. Fountain of Discontent: The Trent Affair and Freedom of the Seas. Boston: Northeastern University Press, 1981.