Freedom of the Seas - 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.