JUNE 8: DAY OF THE LAW OF THE SEA
By René Wadlow
The United Nations (UN) General Assembly has designated June 8 each year to be the The Day of Oceans and the Law of the Sea. For a decade, from 1973 to 1982, the United Nations negotiated a far-reaching Convention on the Law of the Sea which declared that the oceans beyond the limits of national jurisdiction to be the common heritage of mankind.
Much of the spirit for the law of the sea and the regulation of trade by ships is due to the pioneer international law writing of Hugo Grotius. Ralph Townley, a former high UN secretariat member had outlined the contribution of Grotius in an article in Transnational Perspectives (www.transnational-perspectives.org) republished here:
Ruit Hora!: Hugo Grotius and the Rule of Law
By Ralph Townley
Hugo Grotius was born in Delft on Easter Sunday 1583 into a family with a long tradition of public service and one characterized by deep religious devotion. Similar in this respect to the background of Dag Hammarskjold, their lives were an expression and an elaboration of this dual heritage. An infant prodigy, Grotius received his first primer at the age of one from the renowned Lipsius. At three, he could read it and recite the psalms. At six Grotius was a passable astronomer, and at eight wrote a Latin elegy on the death of his infant brother. When eleven, Grotius entered Leyden University and graduated covered in honours three years later. Rather like the young Mozart, Grotius was hawked around Holland at public expense to display his erudition. Not unexpectedly he grew up a little arrogant, touchy, priggish, sanctimonius, and sensitive to criticism.
Grotius’ entry into the world of diplomacy, jurisprudence and statecraft began at fifteen when he was appointed as a diplomatic envoy in a mission to Henri IV. On the way, he had his first experience of a naval battle between Dutch and Spanish men-o’-war. On the way back, he stopped off to take a doctorate in laws at the University of Orleans. Called to the bar at sixteen he soon held high office as Advocate-Fiscal and State Historian. At that time he translated from Dutch into Latin the latest navigational and astronomical commentaries by Mercator and others. He also wrote and published in 1601 his first play Adamus Exul to serve, as he put it, “as a little exercise in Latin.”
As a jurist, Grotius first found international recognition when the Dutch East Indies Company captured a Portuguese treasure ship: Portugal at that time being ruled by Spain. The Company retained him to prepare a brief which was, in essence, a defence of piracy. De jure Pradae provided him with the elements of his first major work of international law Mare liberum published anonymously in 1608. That year he married Marie Van Reigersberch with whom he exchanged love letters in Greek and who was to bear him seven children.
His career was interrupted abruptly when, in 1619, he was condemned to life imprisonment. Two years later, his resourceful wife arranged his escape from the fortress of Loevestein in the library chest in which she normally sent his books and in which he had dutifully returned those he had read. Disguised as a plumber, Grotius escaped with Marie to Paris where, as all good internationalists do when unemployed, he tutored students.
It was in Paris in 1625 that he published his magisterial work De jure Belli ac Pacis. It was a masterpiece commanding instant recognition, and receiving an enduring reputation. Two years later, he finished “Concerning the Truth of the Christian Religion”. It rivals The Imitation of Christ in its popularity. Both have been translated into almost every language and have remained in print ever since.
Grotius’ attempts to return to his own country were well-nigh disastrous and, in due course, he entered the service of the Swedish court serving as ambassador to France. He justified his decision by stating that, like Joseph in Egypt, his people having no further use for him, he was at liberty to enter the service of others. His public probity, however, was never questioned. Throughout his exile, he steadfastly refused all commissions that might have injured the commerce or the political interests of Holland.
While on his grand tour, the young poet John Milton was sent to Grotius by Lord Scudamore, the British ambassador, who, as Milton wrote, “gave me a card of introduction to the learned Hugo Grotius at that time ambassador from the queen of Sweden to the French Court.” It is from Adamus Exul that Milton lifted much of the language for Paradise Lost. (As my friend and colleague Dr Calvin Plimpton once stated “You British never plagiarize, you plunder!”)
As ambassador, the position of Grotius was not enviable. Serving under the redoubtable Chancellor Oxenstierna, he had to attempt to extricate Sweden from an offensive alliance it had had no business concluding with France. With that country at the height of its powers and Sweden by then in decline, Sweden was no match for France. Nor was Grotius a match for Richelieu: Grotius was incapable of dissembling or deceit – very much the tools of the trade of diplomacy in those days – or of demonstrating those vulpine qualities of Richelieu that reveal themselves so startlingly in de Campaigne’s triple portrait of him.
In 1645, while returning from a visit to Queen Christina, Grotius was shipwrecked in the Baltic and died shortly afterwards in Rostock. He lies buried in his native Delft alongside those princes of the House of Orange who, in life, hounded him so relentlessly.
Grotius’ contribution to his world was two-fold: in an age of unbridled religious passion and persecution: tolerance; and at a time of the brutality and horror of the Thirty Years War: the precepts by which nations should govern their conduct with one another and with their subjects.
The sacerdotal, obscurantist, Catholic south of Europe was then locked in a bitter struggle with the Protestant north. With the Huguenots defeated in France, the standard bearers of Calvinism became the House of Orange. Their belief in a dour and awesome God, and a mankind whose fate was predestined became an obsession in the face of Catholic persecution. They sought to establish a highly authoritarian, rigid theocracy in Holland and particularly in that country’s South American colonies under Prince Maurice the absolutism of Bacon and the leviathan of Hobbes came close to reality. While the House of Orange found strong support in the lower classes, the patrician scholars and businessmen rejected Calvinism in favour of a more generous and liberal Lutheranism. Holland had by its own industry and the accidents of history replaced Venice. Holland became the centre of world trade, banking, shipping, agriculture, industry, and scientific inquiry. With a congruence, that can often be remarked in history, politics, religion and the needs of commerce all called for a liberal and spacious government making treaties with any state, a commerce that traded with anyone and a freedom of scientific inquiry unfettered by religious constraints.
That wise and resourceful statesman Oldenbarneveldt, one of the founding fathers of his country, led this movement of enlightenment. The Calvinist synod sought support from Armenius, the noted theologian from Leyden. Instead of helping to scotch the viper in their midst, his research led him to the conclusions that there were no biblical grounds for the belief in predestination, and that man had free will which enabled him to accept – or reject – God’s grace.
Prince Maurice moved swiftly. In 1619 Oldenbarneveldt was executed, Armenius disgraced and Grotius condemned to life imprisonment. Amidst all this, Grotius remained an apostle of tolerance, believing with Erasmus and Nicholas of Cusa that “to know nothing completely is the surest faith.” Grotius continued to translate and write commentaries on the Old and New Testaments as well as to translate Euripides and write his own plays. He advocated reconciliation between Catholic and Protestant to give freedom to the many sects and schools of thought to which Holland was rapidly becoming host. But the separation of man from nature and both from God was already in evidence in Dutch life, art and belief. Some historians have seen the rapidly expanding glass industry as being particularly significant in this process. The wide use of glass and the invention of the lens not only extended the working day and the workman’s working life, but through the invention of the telescope and microscope ushered in the secular era.
This process was most visible in the collapse of Christendom and the rise of the nation-state. Historians date the Treaty of Westphalia of 1648 as the beginning of a world of sovereign independence. But in Grotius’ time this was already a reality, and Grotius did not seek to change it. The nation-state was here to stay. What he sought to do was to rescue from the old order the works of early writers on international law so as to restore the jus naturalis as the overriding obligation not only of mankind but of states as well.
The natural law to the earlier writers was divine law. It was that which was right and just and the righteous man would be a just man. Grotius saw natural law regardless whether it was divine or secular in origin, as binding on the conduct of nations as well as on man. In his major works, Grotius drew on the Spanish school of de Vitoria, Soto, Vasquez, and Suarez as well as the Italian Gentile, and through them reached back to Aquinas and Augustine. Grotius’ writings lacked the sharp edge of the Spanish School and being a practicing lawyer preferred to quote precedent 2,000 years old rather than contemporary cases.
But he codified the law as it applies to the rights, duties and obligations of states on land, at sea, in war and at peace. He sought to create a moral cosmos in which states not only observed the law in international relations with one another but also towards their own citizenry. This social order paralleled in his mind the physical order of the heavens then being revealed by Galileo and his precursors. Much of this thinking can be found in Adamus Exul in which, at seventeen, Grotius was already exploring the moral as well as the physical order of the universe.
His importance today? It is not difficult to trace the Grotian legacy in what is called the constitutive process. Beginning with Jay’s Treaty (when Jay graduated from King’s College, he travelled to Delft on a fellowship to study the Grotius papers), arrangements for arbitration and other methods of peaceful settlement began to feature in international instruments. The Alabama Claims Arbitration was a triumph for Grotian principles. The Hague Conventions and the League of Nations were similar expressions. Less visible but of much greater importance have been the everyday observance of international rules of conduct. This observance gives the lie, I think, to those positivists who regard law as only that which can be enforced.
The Grotian legacy can be found in the pursuit of human rights although it is unlikely, given his rather shaky stand on slavery, that Grotius would have seen the role of the state as an enhancer of human rights. As a realist he only hoped that the observance of natural law would restrain the state from becoming an instrument of oppression.
Many international lawyers see the Grotian legacy slipping away. The seas that for 300 years have been used by everyone as being inclusive, will, under the United Nations Law of the Sea Convention, fall for the most part under exclusive jurisdiction. Law may still have a role but it does not rule. There were more cases before the old Hague Court in the first year of the League of Nations than during the first twenty of the United Nations. As Antony Eden once remarked, “There is too much accommodation between the fire brigade and the fire.” In fact, as Kurt Waldheim has demonstrated, you can get away with almost anything as long as your timing is right.
So many say. But these trends are not a refutation of Grotius’ moral cosmos but the product of new voices raised in the international community who state that it was an immoral cosmos and one in the making of which they had had no voice: hence the search for new approaches to an equitable sharing of the world’s resources, one where the benefits of science and technology can be made universally available and one where even information would be transmitted with a greater sense of international responsibility. These new voices call not for a rejection but a redefinition of the rules that should govern the conduct of the international community.
The Grotius family motto was Ruit Hora. This was not just a Calvinist reminder not to waste time; but, that man has but a brief spell before he exchanges time for eternity and that in that period he has certain obligations to fulfil. In our international activities particularly, we are more likely to run into the would-be-Richelieu than a would-be-Grotius. All the more reason then that we should take his family’s motto and restore ourselves by making it our own.
Ralph Townley, a retired director in the United Nations Secretariat, is the author of United Nations: A View from Within.