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CHRISTIAN MEURER, LL. D., PH.D.
Translated from the German
$ 1. THE HISTORICAL ORIGIN, DISAPPEARANCE, AND REVIVAL
OF THE PRINCIPLE OF THE FREEDOM OF THE SEA.
I. Roman law has already reduced the principle of the freedom of the sea ? to a legal formula, according to which the sea is “commune omnium”; 2 that is to say, the common property of all.
All things that constitute common property (res communes omnium) are determined by some negative and affirmative characteristics. As a first consideration, every exclusive domination, each special privilege, is excluded. This quality of a “res nullius” (a thing belonging to no one in particular), exhibiting the peculiarity of even rendering impossible a future capacity for occupation, finds its necessarily affirmative complement in a “usus publicus” (the principle of a public utility): “the sea is open to all” (Ulpian); that is to say, all mankind has the right in common to use the seas. Everybody is fully entitled to its use, being limited only by the perfectly equal right of others.
According to the Roman conception, this public use is founded upon the “natura” (nature): it rests upon natural law (ius naturale), or, what is the same in this case, upon the “law of nations” (ius gentium).
In Roman law the public use is stamped distinctly as a purely private right, and is safeguarded by an action for personal injury (actio iniuriarium). The Romans did not quite possess the right understanding for the common-law aspect of this question; while their hatred for foreigners rendered them totally unprepared for the principle of international law. For that reason a common participation on the part of the states is absolutely foreign to Roman law.
The public use, to the juridical construction and legal nature of which the Romans did not give a single thought, is not confined, how
1 Cp. with “ Die Entwickelung der Theorie der Meeresfreiheit” (The Development of the Theory of the Freedom of the Sea), Würzburg University Dissertation, 1913; van Calker, “ Das Problem der Meeresfreiheit und die deutsche Völkerrechtspolitik" (The Problem of the Freedom of the Sea and German International Policies), 1917, p. 5 ff.; Stier-Somlo, “ Die Freiheit der Meere und das Völkerrecht” (The Freedom of the Seas and International Law), 1917, p. 34 ff.
288 1 and 5 J. 2, 1; reg. 2 § 1 D 1, 8 (Marcian) ; reg. 3 $ 1 D 43, 8 (Celsus) ; reg. 13 g 7 D 47, 10 (Ulpian).
3 According to Schücking (Der Dauerfriede, p. 54), only the open sea is a res nullius (a thing belonging to no one in particular).