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Published online by Cambridge University Press: 12 February 2016
One of the central, and most controversial, issues of historic international law concerns the distinction between the territorial sea, over which the sovereignty of the coastal State extends (and by implication also its legal system), and the high seas which are subject to the doctrine of the freedom of the seas. Involved in that controversy is first and foremost the very idea of a division of the waters of the sea into two distinct juridical institutes. In the present century alone this question has been unsuccessfully tackled by a whole series of major international conferences on the law of the sea, held in 1930 under the auspices of the League of Nations, and in 1958, 1960 and 1973–75 under the auspices of the United Nations—this latter conference being still in progress at the time of writing.
1 Grotius, Hugo, Mare liberum (Amsterdam, 1609).Google Scholar This was originally Chapter XII of a larger work entitled De jure praedae commentarius, written in 1604 as a brief for the Dutch East India Company but not published until 1868. Reprinted with a translation in the Carnegie Endowment series of Classics of International Law, 2 vols. (New York, 1950). For an English translation of the shorter work, see Magoffin, , The Freedom of the Seas (New York, 1916).Google Scholar
2 Selden, John, Mare clausum seu de domino maris libri duo (London, 1635).Google Scholar English translation, entitled Dominion or Ownership of the Sea by Nedham, M. (London, 1652).Google Scholar This was originally written as a State paper in reply to the work of Grotius, in 1618.
3 The Soncino Talmud (infra, n. 6) identifies this as the Amanus Mountains or Mount Amana (now called Gâvur Dagleri) between Antioch and Alexandretra, at the northern end of the Levant coast. In many Talmudic commentaries, especially to the Jerusalem Talmud, it is identified with the Biblical Mount Hor, the northern limit of the Land of Israel. This must not be confused with the Hor Mountain on the border of the land of Edom, to the south-east.
Mount Amana is also mentioned in the Song of Songs (4:8) and in the Jerusalem Talmud, Shevi'it (infra, n. 6) the Baraitha is followed by a retort by the late Palestinian Amora (scholar of the Talmud) Justa b. Shunnem: “When the returning exiles reach Mount Amana they will surely burst into song, as it is written: Look from the top of Amana ***”. Mandelkern locates it among the peaks of Lebanon. Veteris testamenti concordantiae (ed. Schocken, , 1937) 1366.Google Scholar
4 The better opinion identifies this as the Wadi-el-Arish, on the northern coast of Sinai, but some identify it as the Nile delta.
5 An unidentified peak, obviously in the northern part of the country.
6 Babylonian Talmud, Gittin [Bills of Divorcement] 8a. The above translation has been adapted from the English Talmud, Soncino, Gittin (London, 1936) 26.Google Scholar This Baraitha appears altogether four times more, twice in the Tosefta, in Terumot, 2:11 and Challa, 2:9, and twice in the Jerusalem Talmud (with minor linguistic variants), in Shevi'it, Ch. VI, Gemara on Mishna 1 (Jerusalem ed., p. 17a) and Challa, Ch. IV, Gemara on Mishna 7 (Jerusalem ed., p. 26a). Neither the Tosefta nor the Jerusalem Talmud have been translated into English. This Soncino translation of Gittin is by Rabbi Dr. I. Epstein.
7 
Rashi, on the passage from Gittin 7b cited in the next note, interprets this word to mean that the ship is touching the sea-bed in waters that are not deep. Following him Jastrow translates the word as “the ship touches the ground (in harbour)”. Dictionary of the Targumim, The Talmud Babli and Yerushalmi, and the Midrashic Literature, at p. 274. But this may be queried, for it does not seem juridically adequate, and that is why I am permitting myself to suggest that in this context the word carries a meaning akin to cabotage—engaged in coastal trading. Cf., the Hebrew root 
8 Compare the following from Gittin 7b (Talmud, Soncino, Gittin, p. 26Google Scholar):
“[Plants grown in] earth from foreign parts which is carried in a boat into the Land of Israel are subject to the obligations of tithe and the Sabbatical year. Rabbi Judah says: This is the case only if the boat touches the bottom, but if not, the obligations do not apply”. Here too we would like to suggest that the word translated touches the bottom would be better translated as proposed in n. 7.
9 The Code of Maimonides, Book Four, The Book of Women, translated by Klein, I. (New Haven and London, 1972) 205.Google Scholar The translation of Heave Offerings has not yet been published.
10 Pentateuch with Rashi's Commentary, translated by Rosenbaum, R. M. and Silberman, A. M., Numbers (London, 1933) 164.Google Scholar
11 He wrote a major work, now largely fallen into oblivion, entitled De jure naturali et gentium iuxta disciplinam Ebraeorum libri VII (London, 1640). On Seiden, see the late Chief Herzog, Rabbi, “John Seiden and Jewish Law” (1931) 13 (3rd series) Journal of Comparative Legislation 236Google Scholar; Klee, Hans, Hugo Grotius und Johannes Seiden, von den geistigen Ursprüngen des Kampfes um die Meeresfreiheit (Bern, 1946).Google Scholar
12 Apart from Seiden, the other classic publicist who made use of this Talmudic source was the Bynkershoek, Dutchman, in his De dominio maris, Opera minora (Leyden, 1744) 395.Google Scholar Bynkershoek is frequently credited with having first enunciated the modern doctrine of the territorial sea consisting essentially of a narrow breadth of water adjacent to the coast.
13 It is to be noted that the imaginary line of the Baraitha is what would today be called the maritime frontier itself, and not the base-line from which the breadth of the territorial sea is measured.
