Grotius' Free Sea is losing ground

NRC International, By Folkert Jensma, 14 December 2009 18:02

A statue of Hugo Grotius on the market of his native Delft. Photo Leo van Velzen

In defence of free naval passage to India, the young Dutch lawyer Hugo Grotius in 1609 wrote a fiery pamphlet: Mare Liberum. The work that laid the foundation of international maritime law is becoming increasingly controversial.

To mark the 400-year anniversary of Mare Liberum (The Free Sea), the book first propagating the principle that the seas are international territory, free for all nations to use for seafaring trade, a revised English edition of the pamphlet was published last week. But not everyone thinks the foundations for maritime law laid by Hugo Grotius should be celebrated today. At a conference about Mare Liberum in the Hague last Friday, maritime law professor Fred Soons said the text is now used to defend overfishing. Many of his colleagues are calling to "bury Grotius," Soons said, because they believe fishing and nature conservation are no longer compatible with the ideas of complete freedom Grotius had.

Grotius (1583-1645) was a prodigy, a lawyer, a theologist, a poet, a humanist and a founding father of international public law. But professor emeritus of Roman law Robert Feenstra (89), who revised Mare Liberum, says his ideas were not "terribly original" in 1609. Close inspection proved Mare Liberum is mostly a brief political tract, a one-sided legal argument which relied firmly on Grotius' contemporaries. Yet this document still determines trade and fishery today.

Natural principles of justice

In 1604 the Dutch East India Company (Verenigde Oostindische Compagnie, VOC) asked the then 21-year-old Grotius to legally defend its seizure of the Santa Catharina, a Portugese merchant ship with a crew of 700. The ship was captured in the Strait of Malacca and its cargo earned the VOC 3 million guilders. There was debate within the company whether privateering should condoned. Asking legal experts to interpret international law - or sometimes make it up - was common practice at the time.

Grotius took his assignment very seriously and worked on Iure Praedae (On the Right of Capture) between 1604 and 1609. On the basis of natural principles of justice, he argued every individual has the right to defend himself. He derived the right to private wars and captures from that principle. He further legitimised the capture of the Santa Catarina because of various atrocities committed by the Spaniards and Portuguese, which the Dutch had been at war with since 1568. Grotius also challenged the Spanish monopoly on the trade route to the East Indies (now known as Indonesia) stating the sea is, like the air, a 'res communis' (a public good) and therefore can't be owned by anyone.

But after he put it all on paper the warring parties were about to sign a truce and those in power did not want to rake up the Santa Catharina issue. Grotius was only allowed to publish an argument against the exclusive claim on the sea route to Asia and made chapter 12, Mare Liberum, ready for press. The government of the Dutch Republic, in the middle of negotiations with the Spanish enemy, forbade him to "write nasty things about the Spaniards," according to Feenstra. A reference to the Spanish colonies in the Americas was scrapped and the pamphlet for the free sea was published anonymously.

Although it was meant to break open the route to the East, Mare Liberum soon played a role in fishing disputes with England. The Brits were willing to open up the spice routes, but didn't want the Dutch herring fishers near their shores. Giving countries jurisdiction over the first miles of the coast, the territorial waters, was a concept Grotius embraced in his De Iure Belli ac Pacis (On the Law of War and Peace).

Exploitation of natural resources

Mare Liberum is still cited at the International Court of Justice, for instance in a 2008 legal dispute between Malaysia and Singapore over some tiny islands. But legal maritime conflicts have expanded beyond trade. Today's issues include claims to the sea-floor over oil and gas, fishing rights on the oceans and environmental protection. Methods of international legal demarcation are a hot topic. Countries that want to claim, prevent or enforce something literally need legal anchor points for their arguments. They can now find these in the new English edition of Hugo Grotius.

According to Fred Soons, professor of public law and the director of the Netherlands Institute for the Law of the Sea, "the principle of ‘the free high seas' is still very much alive, but its scope has been limited significantly. Hugo Grotius would not recognise this legal domain today." If only because the free high seas now encompass a mere 40 percent of the water surface. The UN Law of the Sea Convention of 1982 established coastal states have legal jurisdiction over all waters lying within 12 nautical miles of their coasts. Ships from other countries should be allowed "innocent passage," but the country has exclusive economic rights, including the exploitation of natural resources, up to 200 miles from its coast.

An important element to the Grotius' free sea concept was that a ship falls under the jurisdiction of the country under whose flag it sails. Soons said that principle has come under threat because of the large-scale abuse of "cheap flags." Opportunistic owners carry cheap oil in unsafe tankers or empty the oceans of fish under flags of weak nations. "Freedom only works if the flag states take responsibility," said Soons.

Depletion of the fishing stocks

Another problem are countries that condone illegal fishing on the 'free seas' or other countries' coastal waters. Spain, Japan, Korea, Russia and China are known to enter the 200-mile zones of weak coastal states and catch every fish they can find. Modern Somali piracy is said to be the work of local unemployed fishermen. Soons said this depletion of the fishing stocks is "one of the major issues" in maritime law. He does not believe managing and preserving fish stocks can be tackled at a global level, by the UN. But regional fishing committees that have been set up do not have jurisdiction over international waters. No real action has been undertaken because of "enormous economic interest" in fish exports, Soons said.

"Those responsible hide behind Hugo Grotius," Soons said. That is why many in the field of maritime law are saying ‘We must bury Grotius.’ "When it comes to preserving nature, it is high time to put an end to this relic that Mare Liberum is."

Freedom on the oceans will only work as long as bounds to that freedom exist. The principle of non-intervention might have outlived its usefulness when it comes to the free, plundering fishing vessels of the world. "The threshold is still high, but is getting lower," Soons warned.

Who was Hugo Grotius?

Hugo Grotius was born Hugo de Groot in Delft on April 10, 1583. A prodigy, he went to university at the age of 11 and worked for the States of Holland by 1601.

A Dutch documentary about him in 2000 showed him without remorse and got German prosecutors interested in prosecuting him.

His 1609 publication Mare Liberum was part of a larger work in which Grotius investigated the natural principles of justice. This Iure Praedae was not published during his life, but laid the groundwork for his later ideas.

Grotius was affiliated with leading statesman Johan van Oldenbarneveldt and after a theological controversy broke out in 1613, Grotius argued for “the state’s authority over the church”. In 1618 Van Oldenbarneveldt was sentenced to death and Grotius was to spend the rest of his life in prison. In 1621, however, he managed to escape, hidde inside his book chest, and fled to Paris.

While continuing to write about religion, he also finished De Jure Belli ac Pacis in 1625.

Grotius died on August 28, 1645 after he was shipwrecked near Rostock (Germany) on a journey to Sweden.