ILJ Working Paper 2005/14 (History and Theory of International Law Series)

Hugo Grotius’ Theory of Trans-Oceanic Trade Regulation: Revisiting Mare Liberum (1609)

Peter Borschberg

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Four hundred years ago, the Dutch humanist and jurisconsult Hugo Grotius was commissioned by the United Netherlands’ East India Company (VOC) to write a defense of Admiral Jakob van Heemskerk’s seizure of a Portuguese merchant carrack in the Straits of Singapore (February 1603). At the time of the commission, Grotius was twenty-one years old. Between 1604 and 1606 he wrote a comprehensive political and historical exposé on war, prize taking, and Dutch commercial penetration in the East Indies. Today, this work is known as De Jure Praedae Commentarius, or Commentary on Law of Prize and Booty. Only one portion, namely chapter 12, was published during the author’s lifetime: Mare Liberum, the Freedom of the Seas (1608).

The Mare Liberum is propagandistic in its intention and makes a plea for traders from Holland to freely access market places and emporia in Asia by unimpeded navigation on the high seas. The freedom of navigation forms a subset to the overarching arguments on the freedom of access and trade. This particular interpretation stands in sharp contrast to past interpretations of Mare Liberum, insofar as these have placed the freedom of the seas – and not the issue of trade – at the forefront of scholarly attention. From this vantage point, Grotius is surprisingly consistent in his thinking on the wider issues of maritime trade and navigation, including the two colonial conferences of 1613 and 1615 and even beyond.

During the first two decades of the seventeenth century, Grotius lent a helping hand in the process of forging political and commercial treaties between the VOC and Asian rulers. Far from just championing freedom and peace, the Dutch humanist should also take his due place among the fathers of Dutch colonial rule in Asia.