Gentili and the Law of the Sea

Abstract

In the early modern period, the law of the sea (ius maris) remained vague, incomplete, and inconsistent to a large extent. Only a few treaties addressed issues of the law of the sea bilaterally and in a fragmentary fashion. In parallel, the existing customs addressed issues of the law of the sea only in a 'patchy' way, and the network of doctrinal authorities led to many inconsistencies. As a result, the regulation of the world's oceans, that is, the main conduit of movement of peoples and transmission of goods and ideas at the time, remained a site of contestation. For nations and private actors alike (be they merchants and sailors as well as adventurers and pirates), the ocean of law (oceanus iuris) was no more secure than the forces of nature and men on their maritime routes. Is the sea capable of being owned? If so, who owns the sea? Or, does the sea belong to all? Or, if ownership of the seas is materially impossible, can nations exercise some control over activity at sea? The chapter explores how Alberico Gentili addressed these key questions contributing to early modern developments of the law of the sea. Such scrutiny is both timely and important, as developments in the law of the sea have shaped world history over the past 500 years. Because Gentili's contribution to the law of the sea is 'strikingly innovative', significant, and 'foundational', it deserves further scrutiny. In order to discuss the Gentilian contribution to the law of the sea, this chapter relies on his De iure belli, the Hispanica Advocatio, archival materials as well as legal, historical, and literary secondary sources. Gentili influenced the development of the law of the sea in two key ways. On the one hand, he contributed to the conceptualization of the freedom of the sea, the freedom of communication, and the freedom of commerce. On the other hand, he conceptualized the notion of the territorial sea and envisioned a number of exceptions and derogations to the above-mentioned freedoms, in order to balance the interests of the coastal state and those of the international community. He also condemned piracy and privateering as crimes against humanity. Because Gentili served as the advocate of Spain before the High Court of Admiralty in London, his contribution to the development of the early modern law of the sea combined both theoretical and practical aspects. The chapter explores Gentili's contribution to the law of the sea, focusing on three main features. First, it discusses Gentili's approach to the spatial ordering of the sea and examines his twofold contribution to the conceptualization of the freedom of the seas and the notion of the territorial sea in the early modern law of nations. Second, the chapter investigates Gentili's approach to the regulation of the sea as a place where merchants, pirates, and privateers as well as other non-state actors interacted. In this regard, the chapter illuminates Gentili's view of these non-state actors and their role in the making of the law of the sea. It examines Gentili's support for the freedom of international commerce and its regulation by states, and his sanctioning of both piracy and privateering in the early modern period. Third, the chapter discusses the Hispanica Advocatio, examining some of the maritime disputes in which Gentili served as counsel of Spain before the High Court of Admiralty. After providing a critical assessment, the chapter concludes.