2008

Space, Law and Power in Carl Schmitt (*)

Filippo Ruschi

1. The Sea: Another Place

At a time when national systems have been shaken by that host of social, political and cultural phenomena known as globalization, in a moment when "liquid modernity", as Bauman calls it, is eroding the most established categories of legal and political vocabulary, Schmitt's reflections remain a privileged observation point. (1)

Nomos der Erde as a lighthouse from which to observe the restless waves of modernity? To Schmitt's readers, the sea metaphor for globalization will not seem out of place: if the state system, with its distinct territory and circumscribed normative space, is by definition "telluric", then the transnational order today in fieri cannot but be compared to the sea, thanks to its "liquid" nature. And we can therefore interpret contemporaneity starting precisely from the dichotomy developed by Schmitt, theorist of "ocean-like spaces", between Landnahme and Seenahme.

Occupation of the sea belongs to the modern age. For navigators during the classical and medieval ages, the ocean was something wholly uncharted: an empty, threatening expanse, a non-space where myths were born. In his wanderings Odysseus was careful not to go beyond the Pillars of Hercules, and when this occurred, as we read in the sixteenth canto of Dante's Inferno - that is, when Ulysses sailed beyond "quella foce stretta dov'Ercule segnò li suoi riguardi", not only did he lose his life, but his soul was damned for all eternity.

It is not by chance that the ancient sea-empires developed within closed seas: their "sea appropriations" did not go beyond the Mediterranean and Baltic basins. As Schmitt points out, "all pre-global systems were essentially land-based, even if they included sea dominions and thalassocracies". (2) Hence we can speak of continental, river, sea civilizations, but certainly not of oceanic civilizations, thus implicitly acknowledging the revolutionary feature of the ordo that came about with the discovery of the New World.

The prevailing vision was thus a 'telluric' vision linked to the dogma of land appropriation, the division of physical spaces, the sacred definition of boundaries. The waves of the sea, on the other hand, would not only escape dominium, according to the declaration of Ulpian, who observed that "mari quod natura omnibus patet, servitus imponi privata lege non potest" (3); they also would not tolerate the imperium, if it is true what Antoninus Pius says, according to Mecianus, about the Lex Rhodia de iactu: "Έγώ μὲν τοΰ κόςμου κΰριος, ό δὲ νόμος τής θαλάσσης". (4) Even the rule of the emperor, therefore, came to a halt before the waves.

As res communis omnium the sea was out of the jurisdiction of the dominus mundi and therefore legally immeasurable, foreign to any legal title. (5) Even in the Middle Ages, moreover, the Pope and the Emperor -although both political actors with strongly 'continental' interests - avoided regulating maritime law, instead letting it develop according to custom. (6)

Thus the sea belonged to another ordo: it represented an anarchic space in which not only legal but also moral categories were subverted. A late humanist such as Andrea Alciato could therefore write "pirata minus delinquit, quia in mari delinquit". (7) Nothing particularly astonishing, as historians teach and chroniclers certify: the merchants who sailed the seas on their frail vessels could easily shed the clothes of the peaceful tradesman in order to don those of a pirate, as occurred in the well-known exploits of Landolfo Rufolo, narrated by Boccaccio.

For pre-modern men the sea was therefore a boundless, indistinct space and, as such, a source of mistrust, uneasiness, and anxiety. The issue even had eschatological implications: as Schmitt himself reminds us, it is written in the Apocalypse that when the new Jerusalem purified from sin comes about, the sea will no longer exist. (8) And it is not by chance that the first Crusaders - people deeply rooted to the land, led by a French-German aristocracy little accustomed to marine spaces - often preferred taking the difficult Balkan and Anatolian route rather than sailing from Italian ports in their march towards the Holy Land.

2. Lines and Rules

The return of Columbus to Europe on 15 March 1493 had a disruptive effect on the international system. The first ones to have a clear understanding of the repercussions of the Genoese navigator's fortunate journey were the very same who had financed the undertaking: the sovereigns of Spain. Feverish diplomatic activity began. It was necessary to oppose the kind of monopoly on explorations that the Lusitanian crown had secured for itself starting from the 'heroic' times of Henry the Navigator and the penetration along the coasts of Africa in the first half of the fifteenth century. (9) Less than two months after Columbus' arrival (3-4 May 1493) Pope Alexander VI issued a number of bulls that, indicating the progress of the Spanish-Lusitanian negotiations, assigned the Indies to the two Iberian kingdoms and established as the borderline between the respective areas of influence the meridian passing a hundred miles from the Azores. (10) It was, however, an ambiguous determination, one that would lead to the Tordesillas agreement in July 1494 and later to a move of the Lusitanian sphere of influence towards the West.

It is not appropriate here to propose an articulated reflection on the legal significance of the Alexandrian bulls, nor to dwell upon the titles that the Kingdom of Castilla could have presented to justify the Conquista. What I think is important to point out, once again following Schmitt's lectio, has to do with the inherent novelty contained in the concept of raya. The spatial boundary that divided the Spanish-Lusitanian areas of expansion was undoubtedly an absolute innovation in terms of the relationship between space and law: territory lost any orographic specificity, and that which Schmitt defines very effectively as "global linear thinking" came into being. (11)

But the break with the past must be re-evaluated in its true light: the negotiations between the Kingdom of Portugal and the Kingdom of Castilla followed a shared traditio and ordo. The language of the agreement between the two Iberian kingdoms was deeply indebted to the universalism of the medieval political doctrine. The two political entities recognized themselves in a shared ethical-normative system and the pontifical mediation was nothing other than an appeal to an auctoritas that both deemed superior. Unity and continuity: these are the keys through which we can interpret the Spanish/Lusitanian expansionism in the Americas. From this standpoint, the Conquista can be read as a process of homologation, of a reductio ad unitatem of that which is different. It is not by accident that, both in the universities and in the courts, one of the most controversial questions - and the debate at the School of Salamanca demonstrates this - concerned the possibility of adapting the Old World's legal and political categories to the Americas. But it was the spatial organization of power itself that had a strong unitary nature. (12) Madrid refused - or perhaps was simply unable - to understand the specificity of the spaces that the Conquista had granted it. A survey of Spanish colonial legislation shows an attempt to replicate a concept of space that became increasingly obsolete over the years, with the reintroduction of legal institutions and regulations peculiar to the European experience. Finally, we need to recognize - as Schmitt points out - that the rayas would not make a distinction between the occupation of land and of sea. (13) In fact, notwithstanding their absolute novelty, these lines of division continued to be conceived of as 'physical' boundaries, as an instrument for the 'quantitative' division of geo-political and geo-juridical spaces.

Compared with this first paradigm, the subsequent development of "global linear thinking" had a radically disruptive effect, bringing major changes to the international system. Contrary to the archetype of the rayas, which could still be attributed to medieval semantics and was unable to express the specificity of the oceanic spaces, the new Nomos, which had already begun to take shape by the mid-sixteenth century, would find its distinctive feature in the distinction between Landnahme - land appropriation- and Seenahme - sea appropriation -. And the modern conception of the freedom of sea space would derive from the foundational characteristic of the jus publicum Europaeum, the separation between land and sea, (14) where, however, freedom meant anomy. The expanses of the seas were free not because they were available to all international actors, but because they were without regulations, at the mercy of anarchy and of the free and ruthless use of violence sanctioned by the amity lines. (15)

The event that led to the practice of amity lines is well-known. The 1559 peace agreement of Cateau Cambresis had tried to bring an end to the tension between the Empire and the Kingdom of France that had been troubling European politics for decades. The delegations in charge of the negotiations sought to stabilize the European borders; however, they did not believe it was advisable to extend the application of the agreement to the Indies. Thus the regulations agreed upon in Cateau Cambresis would be fully enforced east of the first meridian, whereas to the west "might should make right, and violence done by either party to the other should not be regarded as in contravention of treaties". (16)

It was in fact the first example of a new, but highly disruptive, practice which had great success in the diplomatic world at the time. "No peace beyond the line" was the unanimous call shared by all the courts in Europe. The validity of the jus gentium would come to an end at the meridian of the El Hierro island. (17) Beyond that would prevail the law of the strongest.

On the other hand, in a Europe traumatized by religious schisms, the absence of an auctoritas, a shared ordo, had prevented the adoption of solutions other than that of a substantial anomy. And it is no wonder that the strongest objections to the illegitimacy of the Conquista, and to the practice of the rayas, came from enthusiastic supporters of the Reformation such as England and the Netherlands. Nor was it by chance that, starting from Gentili and Grotius, the great promoters of the freedom of the seas were Protestant. Finally, it was not by chance, either, that even in Catholic France - Spain's arch-rival on the oceans, too, in the early part of the sixteenth century - it was the Huguenots, in their determination to oppose Spanish expansionism, who cried "mare sit commune". The Reformation was deeply rooted in the cities of the Atlantic coast - La Rochelle was to be the last stronghold of the Huguenots - which could not bear that the monopoly of trade with the Indies should be held by the Casa de Contrattaciòn de Sevilla. (18)

Aside from possible historiographic interpretations, it is certain that an unsolvable friction developed between the two Raumordnungsbegriffe - one based on continuity, the other on difference.

In assessing reactions to the monopolistic claims of the Empire, we might ask to what extent the claim concerning the freedom of the seas was itself grounded in a rhetoric of continuity inspired by the legal system that had characterized maritime navigation since the Middle Ages. However, returning once again to Schmitt, we should exercise caution in drawing analogies with pre-modern maritime law. To jurists trained with the Corpus Iuris Civilis the expanse of the sea was res communes omnium. Anybody had the right to exploit the sea's resources and plough its waves. On the other hand, the Ordnung that began to come into being following Cateau Cambresis conceived of the Atlantic as a space without rules, as a 'no man's sea' where men could give full rein to their acquisitive passions. With the amity lines the only rule was that of the mightiest, sanctioned by naval guns. It was the triumph of Hobbes'state of nature, of an anthropology characterized by the saying homo homini lupus.

To better understand the absolute anomy that characterized the oceans in the early modern age, we need only think of the protection often granted to the Confrérie de la côte by the anti-Spanish powers. And this at the time when Alberico Gentili - to cite just one well-known example - drawing inspiration from the medieval notion of hostis humani generis, even doubted whether the lex naturalis could be applied in favor of a pirate. If the states of the Old Continent could act in violation not only of the rules of the bellum iustum but even of the most sacred principles of natural law, then justification is to be found in the exceptional, wholly subversive nature granted by the amity lines to the New World's sea and land spaces. (19)

3. Ordo Britannicus

Starting with the Peace of Westphalia, the practice of the amity lines began to fail. Spain had by now entered into a slow but steady decline. The Anglo-French settlements in the New World had instead become solid realities both from a military and a juridical and political perspective. London and Paris, in turn, were aware of the economic potential of the territories acquired overseas: colonial expansion into the American continent had begun, and a situation of endemic conflict was no longer of use to anyone.

The Franco-Spanish treaty ratified in Ratisbon in 1684 is a perfect example of this trend-reversal in the colonial policy of the time, as it expressly called for the cessation of all hostilities "in et extra Europam, tam cis quam trans lineam". (20) This new political climate generated much reflection on what might be the best tools for establishing a legal system in the territories of the New World. It is not surprising that, in the most glorious years of natural law, the ideology of 'natural frontiers', which prevailed in the treaties of jurists as well as in the practice of chancelleries, was proposed with enthusiasm for the Americas as well. Thus the ancient image of an occupation 'by division', of a limes based on physical geography, was revived, though updated in its juridical forms and techniques.

The fate of oceanic spaces was to be different: for a long time the legal regime of seas was characterized by the anarchy of amity lines practice. This did not mean, however, that oceanic spaces would be relegated to total anomy, and waves denied any rule. As Schmitt has suggested, the sea remained a juridically 'neutral' expanse for much of the nineteenth century, beyond the reach of any sovereign system. Since it was neither state territory, nor colonial space, nor an area that could be occupied, oceanic space was deemed free of any kind of state authority. (21) Sea routes, however, had become all-important for the economy of the Old Continent and it was necessary to establish a stable order. Thus in the age of Enlightenment, a 'parallel' system would arise alongside the jus publicum Europaeum, with the same attributes as the latter: it too was universal, it too acknowledged the validity of the fundamental juridical institutions of the ius belli, starting from that of the ius predae. It too was, to quote Schmitt once again, aware of the value of freedom. (22)

It was England - and it could not be otherwise - which understood all the implications of the dualism between the legal system of the land and that of the sea, and became the depositary of a precise Raumordnungsbegriff, the vestal of the balance between land and sea. Clearly, it was a balance that would not affect English maritime supremacy. What were the features of this hegemony? Examining Schmitt's premises in depth, we can identify one of the fundamental paradigms of English power politics in the dual concept of freedom of trade/freedom of war - one that was bound to bloom fully on the seas, both cause and effect of the English thalassocracy.

Thus at least until the first half of the nineteenth century - a significant change would come about with the Treaty of Paris in 1856 - an agonistic concept of the oceans prevailed; they were considered as places of conflict, where matters of trade competition were relentlessly intertwined with those of the ius predae. It is hardly necessary to point out how precisely this right was constantly being claimed by St. James's Court itself. But the best proof of the single-mindedness of English claims can be found, more than in the Admiralty's regulations, in the cool reception given by both British diplomacy and jurisprudence to the "free ship, free goods" principle, a principle that was meant to protect neutral trade during war operations: the events related to the so-called "Doctrine of the continuous journey" or to the "Rule of war of 1756" are emblematic. (23)

It should not be surprising, therefore, that maritime law has been influenced only recently by the law of treaties. Land and sea have generated distinct legal systems, principles, concepts, and particular uses. The absolute originality of maritime law represents an independent normative genus, as distinct from legal systems of the land. Its peculiar form has developed within an environment in which customary practices and power politics have generated original hybridizations.

After defeating Spain first, and later Netherlands and France, England "became the agency of the spatial turn to a new 'nomos' of the earth, and, potentially, even the operational base for the later leap into the total rootlessness of modern technology". (24) As soon as the ordo Britannicus was established, a de-spatialized, disruptive order came about, one that radically opposed any previous archetype. It was the triumph of U-topia - to quote Schmitt once again - intended as the denial of any localization, any territorial determination. (25) From this perspective, the uniform emptiness of the expanse of the sea excluded any partition or specificity. The sea was a tabula rasa that was not divided into those physical spaces - mountains, rivers, forests - that were the space incubator of national legal systems.

Thus a delocalized but generally global set of rules was linked to a normative body based on both custom and the lex mercatoria. A system independent of the law of the state was connected to a normative system that, as we have seen, would escape the laws of the state from the start, as it was the product of mercantile practice and of spontaneous agreements among traders perfected by jurists.

It is hardly necessary to note that this union was anything but accidental, since it stemmed from a precise ideological framework: the mercantile ideology, already contained in nuce in the well-known Navigation Act issued by Cromwell in 1651. And it was certainly due also to the pressure exerted by the trade companies which, starting from the seventeenth century, were the main protagonists in oceanic commercial traffic. (26) These powerful organizations, with their hybrid legal status, poised ambiguously between civil and public law, learned how to take advantage of the closeness among a 'spontaneous' normative system, the lex mercatoria, a juridical and political system independent of the law of the state, the nomos of the sea, and an international context where the balance of the continental powers gave free rein to a Machtpolitik on the oceans. As Christopher Connery has pointed out with crude realism, the freedom of the sea predicted by Grotius was built upon the guns of the English fleets. (27)

4. The New West

Has the story now come to an end? Should this hybridization be relegated definitively to international law's past? I don't believe so. I would like to note, while avoiding dangerous anachronisms, that the order in force on oceans in the modern age - and Schmitt, far ahead of his times, seemed to realize this, although he did not state so explicitly - in some way foreshadowed today's heavily 'de-structured' transnational law. Schmitt's theory is an important starting-point in this sense for reflecting on the link between global law and the order arising from the breakdown of the jus publicum Europaeum. It is an order in which oceans seem to prevail over land, where the 'liquid' law of markets seems to overrule the 'telluric' law of states.

This interpretation of Schmitt's internationalist theory may seem less risky if we look at the evolution of the ordo britannicus bearing in mind the suggestive image of a global law as epigone of sea law.

With the progressive decline in English maritime supremacy that was already detectable by the end of the nineteenth century, 'classic' British naval doctrine, based as much on the dogma of the sacredness of ocean trade as on the effectiveness of merchant ships' broadsides, found an enthusiastic supporter on the other side of the Atlantic in the person of rear admiral Alfred Mahan. A herald of the thalassocracy of the United States and a maître a penser of navalist geopolitics, with his The Influence of Sea Power Upon the French Revolution and Empire, 1793-1812 (1892) Mahan wielded an extraordinary influence both on political circles in Washington and on naval-strategy scholars at the Naval War College in Newport. (28)

Sea power: according to Mahan, this was the key to supremacy. The recipe was even banal in its simplicity: on the one hand, a powerful merchant fleet supported by navy guns, on the other an exercise of maritime power aimed as much at blockading the trade routes of opponents as at wiping out the naval squadrons of enemies. And the monopoly of sea lanes needed to be implemented in the first place by controlling the approach to the blue waters - the open sea -, to be achieved, in the view of the realistic Mahan, with both the instruments of international law and the naval panoply. (29) Mahan's arguments dampened the enthusiasm of the United States, whose geopolitical interests centered on expansion into the Wild West and on the setting-up of a "neutral" space in line with the Monroe doctrine. But the sudden success of Mahan's book was thanks to President Theodore Roosevelt, an assiduous scholar of naval politics, who shortly thereafter, in the years immediately following the 1898 conflict between Spain and the United States, was able to put Mahan's theories to test. (30)

What is Schmitt's judgment of the author who succeeded better than anyone else in formalizing the foundations of the power of the United States? In the opinion of some, Land und Meer could even be interpreted as a response to Mahan, largely inspired by Hegelian philosophy.(31) This interpretation pits a "telluric" Schmitt against an 'oceanic' Mahan. However, caution is called for, as Schmitt's stance is ambiguous: while it is true that Mahan's doctrine, which was well- known and debated by both Kriegsmarine circles and Geopolitik theorists, is discussed explicitly in Land und Meer, in the later Nomos der Erde reference to it is subtle and hidden.

It is worthwhile reflecting on this change of tune. In Land und Meer Schmitt praises Mahan's clear-sighted characterization of the Anglo-Saxon Seemacht as well as the solidity of his geopolitical perspective. And yet, observes Schmitt, the U.S. admiral did not understand that the upheaval brought about by industry had an impact precisely on the essential point, i.e. the elementary relationship between man and sea. From this perspective Mahan's arguments seem irreversibly outdated, as they concern a technologically-primitive age. It is a hasty judgment, however: the sections that Schmitt dedicated to the triumph of machine over man in Land und Meer are among the most suggestive, in their epic force, but probably not the most successful. As Schmitt puts it, technology has turned on its head the relationship between the whale and the fisherman armed with a harpoon, but it has by no means altered the image of the sea as a place where power politics can freely express itself, manifesting itself in a variety of forms until it becomes Ordnung.

One might hypothesize that Schmitt was aware that his comments in Nomos der Erde regarding the crisis of naval power may have appeared somewhat hasty, especially since he made them as the Anglo-American bombing of German cities was being intensified. This is why his criticism regarding Mahan's theories is muted in Nomos der Erde. Schmitt was aware that even while Mahan's navalism might appear âgée, even if his strategic vision might be considered obsolete, the validity of his Raumordnungsbegriff was beyond dispute. In fact, it was directly from the sea - or rather from occupation of the sea - that the new ordo would arise and mark the definitive collapse of the jus publicum Europaeum.

It was an ordo once again sanctified by a "global line": on 3 October 1939 the neutralization of the waters of the so-called Western hemisphere was decided at the Pan-American conference called in Panama under the auspices of another Roosevelt, Franklin Delano. The objective was to safeguard ongoing war operations by arranging a "safety belt" three hundred miles from the American coasts. It was a Seenahme that reproduced, once again, the opposition between anomy and conflict on the one hand and law and peace on the other. As Schmitt points out, "the global line was a type of quarantine, of pest control, which cordoned off a contaminated area from a healthy country." (32)

Above all it is a Seenahme based on sound ideological foundations: the singularity of America as a place of justice and peace. It is a kind of 'civil religion' that, as Schmitt points out, is rooted in the Calvinist sense of predestination as practiced by the pilgrim fathers and that was renewed and strengthened through the expectations of the millions of Europeans who, escaping from the Old Continent, landed in America "to begin a new life in virginal conditions". (33) The world was hence once more divided up, this time into zones of law and zones of violence. (34) Previously, though, this partition had been the result of a reflection, an agreement among different parties, whereas the position of the United States, according to Schmitt, was an act of pure rule. And this was all the more important, since this partition was an ethical-moral distinction even more than a political and military option.

The line of the Western hemisphere was short-lived: the United States would shortly become involved in the conflict. The spaces that had been 'neutralized' in 1939 became the battlefield of the decisive Battle of the Atlantic in 1941. In the Maelstrom of World War II, the Panama Declaration risks looking like a mere accident of history, the object of the scholarly attention of historians of diplomacy. But it is not. We ought instead to follow Schmitt's suggestions and stress the disruptive consequence of this new global line. In particular, we should emphasize that "the line of the Western hemisphere" was the cornerstone and criterionfor a new legal order, since it once and for all underlined that the United States had become aware of its role as a global power. It is hardly necessary to point out how in this disposition for power, in nuce as the terrestrial sphere was being divided up, the legacy of the ordo britannicus became manifest.

The story is far from over. Even though the practice of the "lines" seems outdated today - as it probably seemed also to an international law scholar prior to the Panama Conference - Schmitt's work does not deserve to be relegated to the archives of the history of internationalist theory. On the contrary, it seems remarkably fresh and, almost fifty years after the publication of Nomos der Erde, shows an understanding of today's changing hegemonic dynamics and an ability to pinpoint with precision tensions in the international order.

In the work of Schmitt, therefore, even more than a geographical concept, the ocean is a powerful metaphor for a de-territorialized space, one without boundaries or frontiers. To rule the oceans means to wield limitless power. Such an absence of limits can be interpreted in two ways: from the geopolitical perspective, it means power without space constraints, which can be wielded on a possibly global scale. At the same time, it represents a precise Raumordnungsbegriff: he who has occupied the sea will possess a de-localized, universalistic and invasive ordo. And, again using the water metaphor, it shall be a fluid one, able to erode the foundations of the most 'telluric' state-sovereignty.

Notes

*. An earlier version has been published in "Eurasia. Rivista di studi geopolitici", 4 (2007), 4, pp. 177-189. See also F. RUSCHI, Leviathan e Behemoth. Modelli egemonici e spazi coloniali in Carl Schmit, "Quaderni Fiorentini per storia del pensiero giuridico moderno", XXXIII-XXXIV (2004-2005), pp. 379-462.

1. Cf. Z. BAUMAN, Liquid Modernity, Polity Press, Oxford 2000.

2. Cf. C. SCHMITT, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum, Duncker & Humblot, Berlin 1974, Engl. trans., The 'Nomos' of the Earth in the International Law of the 'Jus Publicum Europaeum', Telos Press, New York 2003, p. 49.

3. D., 8, 4, 13pr. (Ulp., VI opin.).

4. D., 14, 2, De lege Rhodia de iactu.

5. Res nullius or res communis omnium? Scholars still debate the real meaning of the sea for Roman law. See A. A. CASSI, Ius Commune tra Vecchio e Nuovo Mondo, Giuffrè, Milano 2004, pp. 114-139.

6. See W. G. GREWE, Epochen der Völkerrechtgeschichte, Nomos Verlagsgesellschaft, Baden-Baden 1984, Engl. trans., The Epochs of International Law, Walter de Gruyter, Berlin-New York, 2000, p. 132

7. Quoted in C. SCHMITT, The 'Nomos' of the Earth, cit., p. 44.

8. See C. SCHMITT, The 'Nomos' of the Earth, cit., p. 43.

9. On the Portuguese expansion see B. W. DIFFIE - G. D. WINIUS, Foundations of the Portuguese Empire. 1415-1580, University of Minnesota Press, Minneapolis 1977 and M. NEWITT, A History of Portuguese Overseas Expansion, 1400-1688, Routledge, London 2005. In a comparative way see also H. BULL, European States and African Political Communities, in H. BULL, A. WATSON (eds), The Expansion of International Society, Oxford University Press, Oxford 1984, pp. 99-114.

10. On the papal bulls see the 'classic' H. VAN DER LINDEN, Alexander VI and the Demarcation of the Maritime Colonial Domains of Spain and Portugal, 1493-1494, "The American Historical Review", 22 (1916), 1, pp. 1-20. For a legal framework see also A. GARCIA GALLO, Los Origines españoles de las instituciones americanas. Estudio de derecho indiano, Real Academia de Jurisprudencia y Legislación, Madrid, 1984, pp. 311-659, and W. G. GREWE, The Epochs of International Law, cit., pp. 229-236 and A. A. CASSI, Ius Commune tra Vecchio e Nuovo Mondo, cit., pp. 85-114.

11. See C. SCHMITT,The 'Nomos' of the Earth, cit., p. 87.

12. See C. SCHMITT, Land und Meer. Eine weltgeschichtliche Betrachtung, Klett-Cotta, Stuttgart 1954, Engl. trans., Land and Sea, Plutarch Press, Washington D.C. 1997.

13. See C. SCHMITT,The 'Nomos' of the Earth, cit., p. 92.

14. Ivi, pp. 181-184.

15. On the amity lines ivi, pp. 92-99.

16. Cf. DAVENPORT F. G., European Treaties bearing on the History of the United States and Its Dependencies Vol. I, Carnegie Institute, Washington 1917-37, p. 220, quoted in W. G. GREWE, The Epochs of International Law, cit., p. 155.

17. The island of El Hierro, is the westernmost of Canary islands. On the importance of the archipelago in pre-modern international law see G. FAHL, Der Grundsatz der Freiheit der Meere in der Staatenpraxis von 1493 bis 1648: Eine rechtsgeschichtliche Untersuchung, Heymanns, Berlin 1969.

18. On the connection between trade and oceanic spaces see P. E. STEINBERG, The Social Construction of the Ocean, Cambridge University Press, Cambridge 2001, pp. 68-109.

19. On piracy as a social and legal phenomenon see W. G. GREWE, The Epochs of International Law, cit., pp. 304-312. On the importance of pirates as non-State actors see J. E. THOMSON, Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe, Princeton University Press, Princeton (N. J.) 1996.

20. Quoted in W. G. GREWE, The Epochs of International Law, cit., p. 160.

21. See C. SCHMITT, The 'Nomos' of the Earth, cit., p. 172.

22. Ivi, p. 173.

23. Cf. S. MANNONI, Potenza e ragione, Giuffrè, Milano 1999, pp. 206-260. See also W. G. GREWE, The Epochs of International Law, cit., pp. 407-412.

24. See C. SCHMITT, The 'Nomos' of the Earth, cit., p. 178.

25. Ibidem.

26. On trading companies and the modern international legal system see W. G. GREWE, The Epochs of International Law, cit., pp. 298-304. See also J. E. THOMSON, Mercenaries, Pirates, and Sovereigns, cit., pp. 32-42 and 59-68.

27. Cfr. C. L. CONNERY, Ideologies of Land and Sea: Alfred Thayer Mahan, Carl Schmitt, and the Shaping of Global Myth Elements, "Boundary"; 28 (2001) 2, pp. 173-203, see in particular p. 183.

28. On the thought of Mahan see P. A. CROWL, Alfred Thayer Mahan: The Naval Historian, in P. PARET (ed.), Makers of Modern Strategy, Oxford University Press, Oxford 1986, and J. TETSURO SUMIDA, Inventing Grand Strategy and Teaching Command. The Classic Works of Alfred Thayer Mahan Reconsidered, John Hopkins University Center, Baltimore (Md.) 1997.

29. On the influence of Mahan in the international legal doctrine cf. S. MANNONI, Potenza e ragione, cit., pp. 184-186.

30. See R. W. TURK, The Ambiguous Relationship, Theodore Roosevelt and Alfred Thayer Mahan, Greenwood, New York 1987.

31. As suggested in C. L. CONNERY, Ideologies of Land and Sea: Alfred Thayer Mahan, cit., p. 190.

32. Cf. C. SCHMITT, Il Nomos della terra, cit., p. 290.

33. Ivi, p. 291.

34. On amity lines and ius belli, see E. GOULD Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, circa 1772, "William and Mary Quarterly", 60 (2003), 3, pp. 471-510.