Of Spiders and Bees 203on a neutral ship on the high seas. A “free ships– free goods” provision al-
tered that rule between the two treaty parties, by providing that the belliger-
ent state could not capture enemy property from ships of the neutral country.
In the common expression of the time, it was said that the neutral fl ag “cov-
ered” the enemy goods and kept them legally safe from capture. When ar-
rangements of this type were made on a wide scale— as they were— the net
eff ect was to reduce the impact of war on the activities of maritime traders,
since nationals of belligerent states could now ship their goods on neutral
vessels and thereby legally bar the enemy from capturing them.
Th e fourth common element in the treaty practice was the development
of what came to be called a most- favored- nation clause. Th is entitled each
party to a treaty to be given treatment equal to that accorded to any third
party— even if the third party’s favorable treatment was arranged at some
unspecifi ed future time. Th e fi rst most- favored- nation clause that clearly
included this element of futurity appeared in a bilateral treaty between En-
gland and Spain in 1667. As provisions of this kind appeared in more and
more treaties, the eff ect was a gradual introduction, from the ground up, of
a system of nondiscrimination in commercial relations.
Bilateral treaties had some weaknesses, however. For one thing, their con-
tents were necessarily dependent on the bargaining pro cess between gov-
ernments. It was the general policy of the British government not to agree to
the inclusion of “free ships– free goods” provisions in treaties to which it was
a party. As the strongest maritime power, it was careful to avoid placing le-
gal restrictions on the benefi ts that its naval strength could bring. Moreover,
there was a certain fragility to these treaties, since it was generally accepted
that an outbreak of war between two states automatically terminated all
treaties between them. Still, there was no doubting that the treaty network
did, in fact, make for stability between the Eu ro pe an countries and lay a
fi rm foundation for rights of foreign merchants abroad— and, more widely,
for nondiscrimination against foreigners generally— as well as for the rights
of neutral traders during war time.
Law at Sea
Th e situation regarding the law of the sea provides another excellent illustra-
tion of the manner in which international law was increasingly becoming a
matter of reconciling concrete interests— in this case, without much regard