The Rights of War and Peace

Richard Tuck argues that since Grotius planned for a revised ibp to be pub­lished together with Mare liberum, he �clearly did not suppose then that the De Iure Belli ac Pacis had superseded the earlier work'^{[821] [822] [823] Tuck is one of many scholars who pick up on Grotius' justification of colonial expansion in terms of private wars, and rightly considers IPC, Mare liberum and ibp as vital in the emergence of corporations as agents of empire?3 However, this approach ig­nores the fact that either Grotius gave equal emphasis to the contradictory view, namely that the voc's operations are justifiable as private wars but they are essentially public in nature; or that Grotius' self-contradiction is at most partial, as he integrated public and private interests and wars in a way that an exclusive focus on private law elides completely.44}

Perhaps recognising the self-contradictions he left in Mare liberum, Grotius introduces a new category in ibp.

However, salient features of Mare liberum, including Grotius' insistence that no one can have property in the high seas, resurface in ibp. Grotius believed that the sea was too vast to be owned, and that it was sufficient for all. Pretend­ing to own some or all of it would be as ridiculous as claiming property in air while not standing on Earth, and unable to use air^{[828] [829] [830] Yet after he praises Selden’s Mare clausum in a footnote, Grotius admits that natural law allows for owning the seas; it is international law that prevents it. People can in fact instantiate ownership if they are able to effectively take possession of a sea.5° This is a significant concession, and moves the burden of proof from the natural fea­tures of seas, emphasized in Mare liberum and in Grotius' Defense of Chapter v of Mare liberum, toward the genealogy of property that Grotius develops. In this sense, ibp’s free trade claim is closer to Mare clausum, where Selden rests his case for sovereignty over the seas not on natural law, but on a genealogy of property.51 Grotius' change of mind extends to land, title to which also requires effective, de facto possession.[831] [832] [833] [834] The distinction between natural law and cus­tomary international law, clear in these passages, is blurred in ibp ii.xii. xxvi.763-6, an extraordinary passage where Grotius describes natural law as having less to do with a natural origin or mankind's correct understanding of nature than with the effect of customary international law in habituating cus­toms and norms in human consciousness over time as if they were in fact natu­ral laws.53}

Furthermore, while in his Defense of Mare liberum Grotius insisted that he only meant to discuss ownership (dominium) of the seas, not jurisdiction (im­perium) over them, in ibp he admits not only that ownership is possible under the aforementioned conditions, but that according to both natural and inter­national law, jurisdiction over seas is common and unproblematic, complete with the right to regulate and tax maritime trade.5⁴ While the ibp passages concerning the international law in favour of free trade recall Mare liberum, there is effectively nothing left from Mare liberum’s free trade doctrine. Schol­ars who wish to portray Grotius as a corporate shill should rely not on ipc and Mare liberum, but on his praise in ibp of the world-conquering potential of limited liability companies and even monopolies in the service of state interests.55

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