Mare Clausum and Mare Liberium in the Philippine Setting

One of the earliest foundation for the development of modern international law might be the rules governing the use of the sea during medieval times.  Two opposing views or concepts on the use of the sea have sprung over the seizure of a Portuguese carrack by Dutch East India Company in Southeast Asia in 1603 due to the determination of Dutch to challenge the control of Portuguese over the waters of East Indies or South Asia.  This led to publication of anonymous treatise titled mare liberium written by Hugo Grotius in 1609 espousing the use of any flag state of any state’s territorial waters but refuted by John Selden in 1635 with his treatise titled mare clausum advocating that territorial waters of any state can only be sailed by its own ships. 

Over the years these two concepts have heavily influenced international law especially the formation of the Law of the Sea Convention (LOSC) in 1982 which identified different maritime zones in governing the world seas and oceans.  Under the LOSC, some countries such as the Philippines as a mid-ocean archipelago have to fought for a peculiar recognition using the combination of the two popular perspectives.

            It could be argued that the Philippines, as an archipelagic country have benefited in both ways through the application of mare liberium and mare clausum in the international law.  Through these legal concepts, the Philippines was able to exercise jurisdiction wholly over its 7,100 islands without fragmentation of its territories and was recognized internationally. 

            This paper will discuss the importance of two opposing concept in the Law of the Sea namely the mare liberium and mare clausum.  The author will start with the discussion of the importance of two concept in influencing the LOSC in 1982 and how it relates to governing human activities in the ocean.  It will be followed by the importance of two perspectives in the application of LOSC in managing ocean resources and maritime activities in the Philippine settings, specifically how mare clausum was instrumental in the advocacy of the Philippines to be recognized as an archipelagic state and the challenges and opportunities on seeking recognition of its archipelagic doctrine.

Mare liberium and mare clausum in the LOSC

Hugo Grotius was not the original advocate of mare liberium.  The first to espouse this idea was Queen Elizabeth I of England as a result of the Spain and Portugal claim over exclusive rights on the newly discovered lands.  Spain and Portugal was able to secure the support of the pope through papal bulls and later through the Treaty of Tordesillas in 1494.  The treaty set a demarcation line to divide the new discoveries where the west of Cape Verde belongs to the Spain while the east of it shall belong to Portugal.  In effect, the Treaty of Tordesillas gave Spain and Portugal authority to close the seas or mare clausum of their designated areas for their own ends.  This did not sit well with Queen Elizabeth I whose interest is to protect her subject’s economic activities in the ocean such as trade and fishery and was threatened by claims of Spain and Portugal.
However, later in history as England developed into one of the maritime powers and increasingly interested of protecting its own territories and colonies, it reverted to advocating mare clausum and even gone through the lengths of commissioning John Selden in 1635 to publish the book mare clausum to defend its rights as sovereign over its claims.  Unfortunately, the book was losing an uphill battle since the new civilized world has begun to embrace the views of Grotius which was seen to be anchored on a more moral ground by advocating the freedom of the seas as every nations’ right to travel and trade with everyone.  It is the lofty moral philosophies that gave the work of Grotius much appeal and charisma to the world founded on the principle that the high sea should be available for the innocent use of anyone and for the shared benefit of mankind.
Towards the eighteenth century, the freedom of the seas that was advocated by Grotius gained wide acceptance due to the practice of colonialism and European imperialism.  The opinion that no state can have a sole control of the seas except its adjacent waters was also widely supported by most writers.  However, as the Law of the Sea Convention was created in 1982 there was an evident influence of both concepts to the conventions as reflected on several of its articles.  The incorporation of the concept of mare liberium and mare clausum in the LOSC directly affects human activities in the world oceans as their respective governments adopted it in their own local legislation.  In the final text of LOSC of 1982 which has been in use up to this present time, there are several articles that reflects the principle of mare clausum.  The Part II, Section 2 of the LOSC was devoted to defining the territorial sea and internal waters which are subject to the sovereignty of coastal states.  Although mare clausum was originally referred to the high seas as intended by its advocates such as John Selden, the presented argument for the concept is interestingly similar in the appropriations of territorial waters in the context of LOSC.  The reasons are generally along the lines of subjecting the sea to the control of adjacent state for the purpose of managing exhaustible ocean resources, the security and prosperity of the state and exercise of sovereignty.
With the popularity gained by mare liberium as advocated by Grotius, it became increasingly accepted that the high seas should be free for all nation to use and no nation can prevent any nation to exercise its inherent right of conducting peaceful activities at sea.  This principle was then adopted in the LOSC in the articles relating to freedom of navigation, innocent passage, transit passage, and archipelagic sea lane passage. 
The two perspective in application of LOSC in this modern times complemented each other to govern and regulate human use of the seas.  The dichotomy that brought about by the clashes of ideas between Grotius and Selden on the use of the sea during medieval times was a necessary event in the human history which the mankind has benefited through its codification in the international law specifically in the LOSC. 

Philippine application of mare liberium and mare clausum

The Philippines, similar to Indonesia, have achieved an unprecedented status under the LOSC of 1982 which gave these two countries recognition of being archipelagic countries.  The inclusion of said recognition under Article 46-54 was an important political development after being former colonies of western powers. It is no doubt that the concept of mare liberium and mare clausum as embraced by international law, became important in the governance of waters in the Philippines. 

The Philippines has long been advocating for its recognition as an archipelagic state.  Evidently in 1955 in a note verbale to the Secretariat of United Nations and in preparation for the first law of the sea convention, it strongly suggested that it is regarding the waters around, between, and connecting the islands, regardless of its physical formation are essential accessories of its terrestrial territories and subject to its sovereignty.  The note verbale suggests that Philippines intends to classify its archipelagic waters similar to internal waters subject to exclusive jurisdiction of the Philippines which is in consonance with the principle of mare clausum.  The Philippine proposal stems from the premise of protecting its economy, national security, and territorial integrity.  However, this proposal goes against the wishes of major maritime powers in their aim to build unrestrictive navigation in the seas as much as possible and unfortunately the same view was shared by many countries including the original proponents of archipelagic doctrine who were all comfortable with putting archipelagic waters similar to territorial sea regime in the LOSC .  The Philippine proposal succumbed to the consensus of the majority which merely categorized archipelagic waters similar to territorial waters regime subject to archipelagic sea lane passage and innocent passage but the latter can be suspended by reasons of national security. 

Through the principles of mare clausum, the Philippines was able to negotiate compromise and allowed the Philippines the opportunity to regard its dominion as one whole territory and not as individual islands which could have existing pockets of high seas if archipelagic doctrine was not incorporated in the final text of LOSC.  It should be noted that Philippines is a developing country where most of its population lives in its long coastline and dependent on the resources and utilization of the sea.  An existence of pocket of high seas inside Philippine territories is not only dangerous to its national security but also detrimental to the economic well-being of its citizenry. 

Conclusion

            Arguably, the Philippines as an archipelagic country have benefited from the application of mare liberium and mare clausum in the international law.  Through these perspective, it was able to convince the convention of providing special recognition of its peculiar geographic make-up by regarding its archipelagic waters as territorial waters but of course in concession with advocates of mare liberium through innocent passage and archipelagic sea lane passage. 

            The mare liberium and mare clausum perspective, although has been regarded as opposite views during medieval times, the state parties to the convention was able to found common grounds for these two perspective to complement each other which perfectly reflects on its preamble on its desire to promote the peaceful use of the seas and oceans, rightful and effective use of their resources and its conservation.  These two perspective have undoubtedly affected the utilization of the seas and ocean through the adaptation of the convention’s provision on the local laws of the state parties to the convention.

            With the LOSC have been recognized by 168 countries who signed and ratified the convention,  the two perspective of mare liberium and mare clausum will still going to be an important concept of international law and will affect states interaction with other states and consequently their constituents in the years to come.