The Freedom of the High Seas: A Reappraisal

Abstract

The concept of the freedom of the high seas has been a central issue in a variety of international conflicts. In the 16th and 17th centuries the Dutch and British refused to accept the authority of the Portuguese and Spanish over large parts of the sea. In the 17th century a serious conflict arose between the Dutch and the British concerning the interpretation of the freedom of the seas. In the 18th and 19th centuries, however, the principle of the freedom of the seas gained general recognition along with the idea that each coastal State should be entitled to exercise its sovereignty over a limited belt of the sea adjacent to its coasts.¹ During the 20th century prior to the Second World War this principle did not give rise to many contentious issues. However, after the Second World War again a new trend to restrict the freedom of the seas has been developed, the two main reasons for these restrictions being: (1) the influence of modern technology on the uses of the sea and (2) the coastal States’ claims over large parts of the adjacent sea. In order to understand the legal aspects of the freedom of the seas it is necessary to deal at least in general terms with the different present-day and potential uses of the seas. As the principle of the freedom of the seas has only a bearing on the high seas the next question which is to be discussed is the definition of the high seas. The third and most important issue which deserves consideration is the nature and scope of the freedom of the high seas. Thereafter the following aspects of the principle of the freedom of the seas will be discussed briefly: the freedom to use the high seas as an area of communication; the freedom to exploit the natural resources of the high seas; the freedom to use the high seas for peaceful purposes other than as an area of communication or for the exploitation of natural resources; and the freedom to use the high seas for military purposes.