Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Some Thoughts about Grotius, Four Hundred Years on.

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Some Thoughts about Grotius, Four Hundred Years on.

Article excerpt

This lecture began at 4:30 p.m., Wednesday, April 8, 2015, and was given by Sir Kenneth Keith, former Judge on the International Court of Justice, who delivered the 2015 Grotius Lecture; the discussant was Dame Rosalyn Higgins, former President of the International Court of Justice.


By Kenneth J. Keith *

What would Grotius see as major challenges for international law and its practitioners in our time? How would he approach them? How would he balance beautiful theory and ugly fact? Heritage and heresy? What lessons does he teach us in dealing with our tasks today? (1)

I will be looking back not just to the early seventeenth century, but also over the past fifty years, to 1965, when I came to this meeting for the first time, travelling from Cambridge, Massachusetts, in a Greyhound bus with Peter Trooboff. In the course of the last fifty years, I have been an observer and occasional participant in the application and development of international law in the face of major change and challenge, to refer to the theme of this conference. To mention one matter to which I will return, in 1960, as I began as a junior lawyer in the New Zealand Department of External Affairs, the second United Nations Conference on the Law of the Sea was assembling. It will be recalled that it narrowly failed to adopt a provision for a six-mile territorial sea and a further six-mile exclusive fisheries zone. (2) A few years later, New Zealand adopted a twelve-mile fishing zone. Japan challenged the extension and proposed that the matter be taken to the International Court of Justice. Instead, a phase-out agreement was reached. (3) There were already much more extensive claims, notably the two-hundred-mile claims to a "patrimonial sea" made by Chile, Ecuador, and Peru, and the practice relating to the continental shelf was developing apace. (4)

Four hundred years ago, give or take a few years, we find Hugo Grotius in the early 1600s addressing law of the sea issues: (1) as counsel for the Dutch East Indies Company (the Company) in the Admiralty or Prize Court in Amsterdam in a dispute arising from the seizure by a ship of the Company of a Portuguese galleon in the Straits of Malacca; (2) in 1613 in London, as Pensionary of Rotterdam, a position to which he was appointed when he was just twenty-four, negotiating in Latin with James I of England, about fisheries and much broader matters of trade in the East Indies; and (3) in 1615, again in London, negotiating over whaling around Spitsbergen. (5) He was already a renowned author, especially on matters of theology, and a poet. But from that time, it is his treatise on the law of prize, De Jure Praedae, or rather one chapter of it, that is relevant for my purpose. The treatise was prepared as a brief for the Company. The famous chapter, "Mare Liberum," was published anonymously in 1608 and was used by the English in the 1613 negotiations. They quoted from the writings of the "assertor Maris Liberi" (the negotiations, written as well as oral, were largely in Latin), taking a passage from the last paragraph of chapter 8 to the effect that freedom of trade is based on a primitive right of nations which has a natural and permanent cause that is part of the law of nature rather than the positivist law of nations. (6) The argument may also be made that the legal underpinning which he gave to the role of the Dutch East Indies Company facilitated the voyage made by Abel Tasman thirty- five years later around the west and southern coasts of Australia and the first discovery and mapping by a European of New Zealand.


By the time he is thirty, Hugo Grotius has already prepared an important work on international law of large continuing influence--as Professor Ernest Nys, an early honorary member of this Society, declared, in this battle of the books, Grotius had the better of Johannes Selden, his English antagonist--Grotius has undertaken work as an advocate, he has been appointed to two major public offices, and he has had a significant role in diplomatic negotiations, although with some questioning his effectiveness in that role. …

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