Note, § 934, part 8, Jus Nat.
Note, § 118.
See those things which we have discussed elsewhere concerning that matter. Here also is to be borne in mind what we have already noted with reference to the preceding proposition.
§ 120. Of the use of the sea
The use of the open sea consists in navigation and fishing, in occupation of things found on the beach near the shores, as shells, gems and in some places amber, and in extraction of salt from the sea-water. This is sufficiently plain from experience, so that it does not need further proof.
The former use of the sea is absolute, but the latter contingent. And he who has either the absolute or contingent use can exercise it without impairment of the substance.
[print edition page 100]
§ 121. Whether it is allowable to subject the sea to private ownership
§ 120.
§ 195, part 2, Jus Nat.
§ 201, part 2, Jus Nat.
§ 199, part 2, Jus Nat.
Since the use of the open sea consists in navigating and fishing, and because you navigate on the sea or fish in it, you do not therefore interfere with the possibility of another navigating or fishing, if he needs to navigate or fish; the open sea is a thing of unlimited use, consequently since no one is able to acquire ownership in property absolutely natural, subject to unlimited use, and no one is allowed to bring it under his ownership, no nation either is allowed to bring under its ownership the open sea, even if that were possible, nor can it acquire ownership of it without contravention of natural law. And the same thing in like manner is understood of several nations which cannot jointly subject the open sea to their ownership, consequently no nation is able to subject any great part of the ocean or open sea to its ownership. And since property is subjected to ownership for the sake of use, no nation can subject to its ownership the right of navigating and fishing in the open sea.
§ 156, part 1, Phil. Pract. Univ.
Grotius rightly calls this a moral reason, because it is derived from justice, which is a moral power, and is opposed to the physical power of action, which indeed the former presupposes, but which, on the other hand, is not presupposed in the latter, since you are able to do many things which nevertheless you are not allowed to do. So theft is an act physically possible, a thing which is unknown to none, nevertheless it is not morally possible, because one is not allowed to commit theft.
§ 122. Whether any one can forbid navigation and fishing in the open sea
§ 121.
Since the right of navigating and fishing in the open sea may be subjected to the ownership of no one, no one has the right of preventing another from navigating and fishing in the open sea, consequently it is allowable for any nation as it pleases to navigate and fish.
§ 119, part 2, Jus Nat.
Of course each right ought to remain common for the entire human race, so that any man may use either, whenever and as often as he pleases. It is the right of an owner to exclude others from that right
[print edition page 101]
which he himself enjoys. But he who does not have an especial right cannot exclude others from it, much less from a common right.
§ 123. Whether it is a wrong to restrain one from the use
§ 122.
§ 239, part 1, Phil. Pract. Univ.
§ 859, part 1, Jus Nat.
If one nation seeks to restrain another from the use of navigating and fishing in the open sea, it does a wrong to such other. For every nation is allowed as it pleases to navigate and fish in the open sea. If then some nation should seek to restrain another nation from the use of navigating and fishing, this is contrary to the right of such nation. Therefore, since he does a wrong to another, who does anything which is contrary to the right of the other, if any nation seeks to restrain another from the use of navigating and fishing in the open sea, it does a wrong to the other.
Nor do we draw our conclusions from those things which either have been done in the past, or to-day are done. For the law of nature has a reason within itself, nor are the acts of nations a rule of law, but rather is the law a rule for the acts.
§ 124. Whether that use gives just cause of war
§ 123.
§ 1109, part 1, Jus Nat.
Since a nation which desires to restrain another from the use of navigating or fishing in the sea, does it a wrong, and since a wrong is a just cause of war, if any nation desires to restrain another from the use of navigating and fishing in the open sea, the latter nation has just cause of war.
§ 1104, part 1, Jus Nat.
Of course the nation which wages war defends its right against another, which is striving to take that right from it without its consent. Therefore by nature the right of war belongs to the former against the latter.
§ 125. On whose part then a war is unjust
§ 123.
§ 1109, part 1, Jus Nat.
§ 1110, part 1, Jus Nat.
On the other hand, because a nation, which does not desire to allow another nation free use of navigating and fishing in the open sea, does it a wrong, if by force of arms the nation seeks to restrain the other from this use, it does not have just cause of war. Therefore, since a war is unjust the cause of which is not just but unjust, if any nation desires to restrain
[print edition page 102]
another by force of arms from the use of navigating and fishing in the open sea, the war which it brings upon the other is unjust.
§ 10.
§ 12.
One acts contrary to the right of nations, who seeks by force of arms to claim for himself the right to navigate and fish in the open sea to the exclusion of other nations, since, as it is to the advantage of nations to protect this right, it is allowable for any nations to oppose that action, nay more, since nations are understood to have united into a supreme state, they are bound by nature to protect the same. The laws of nations provide for the common welfare, and so he who injures that commits a wrong against all nations.
§ 126. Of stipulative right in the use of the sea
§ 122.
§ 103, part 3, Jus Nat.
§ 118, part 3, Jus Nat.
One nation can agree with another not to navigate or fish in the sea, or within certain limits in the open sea. For since the right belongs to any nation to navigate or fish in the open sea, wherever it pleases, if any nation agrees with another nation that the latter shall not navigate or fish in the sea, or within certain limits in the open sea, the latter renounces its right in favour of the former. Therefore, since by nature any one can renounce his special right, one nation can agree with another not to navigate or fish in the sea, or within certain limits in the open sea.
§ 23.
§ 76.
§ 78.
§ 78.
§ 103, part 3, Jus Nat., and § 660, part 1, Phil. Pract. Univ.
§ 104, part 3, Jus Nat.
The exclusion therefore of any nation from free use of navigation or fishing in the open sea can be only a matter of stipulative right; when such agreements are lacking, exclusion has no place. Since navigation and fishing