GROTIANA

Grotiana 30 (2009) 131–151 brill.nl/grot

Grotius’s Mare Liberum in the Political Practice

of Early-Modern Europe*

Andrea Weindl
Institute of European History, Mainz
Email: AndreaWeindl@web.de

Abstract
In this article Mare liberum is placed within the context of seventeenth-century European poli-
tics. It focuses on the development of conventional relations between European States regarding
their interests outside of Europe and their importance concerning the status of Asian and African
‘actors’. It turns out that in spite of Mare liberum’s high-sounding proclamation of equality of
non-European sovereigns with European States, Grotius’s position as well as Dutch policy was
inspired by self-interest and was essentially opportunistic. The Dutch Republic – as well as other
European States – used the ‘liberal’ principles of Freedom of trade and the Universality of the
Law of Nations to attack the Portuguese/Spanish claims of monopoly. However, as the Dutch
Republic, Great Britain and France developed their own ‘Spheres of Interest’ in Asia, Africa and
the Americas, they effectively excluded would-be competitors. Indeed, in the eighteenth century
the ‘pacte colonial’ constituted a distinctive characteristic of the conventional and customary
‘European Law of Nations’. As non-European political actors in the eighteenth century relatively
lost military and political power, the European States finally relegated them to an inferior posi-
tion, beyond the charmed circle of full ‘subjects of Public International Law’. The article also is
a contribution to the ongoing discussion about the relation between European imperialism and
the development of the doctrine of European International Law.

Keywords
Mare liberum, treaties, freedom of trade, pacte colonial, monopoly

Introduction

The year 2009 marks not only the four hundredth anniversary of the publica-
tion of Grotius’s Mare liberum, historians and politicians commemorate also
the 400th anniversary of the conclusion of the first comprehensive truce

* I would like to express my gratitude to Prof. Dr. C.G. Roelofsen for his additional input
and substantial help for the English version of this essay. I am of course fully responsible for any
errors.

© Koninklijke Brill NV, Leiden, 2009 DOI 10.1163/016738309X12537002674402

132 A. Weindl / Grotiana 30 (2009) 131–151

between the Spanish Habsburgs and the United Dutch Provinces liberating
themselves from Habsburg domination. This was the first formal Spanish step
towards an international recognition of the Republic’s independence. The last-
ing reconciliation between Spain and the Republic was to be achieved 39 years
later with the conclusion of the final peace treaty in Munster. It was not mere
coincidence that the Mare liberum was published some days after the signing
of this truce. The development and publication of Grotius’s document are
closely connected to the negotiation of this treaty.
Mare liberum is considered beside the De iure belli ac pacis as the most influ-
ential treatise concerning international law by Hugo Grotius. It substantiated
theoretically the fight against the alleged or real claims to universal domi-
nance1 of the Spanish Habsburgs. The exposition enjoyed immediate and last-
ing popularity. More often than not, the slogan of the ‘Freedom of the Seas’
was picked up by other states with a similar need to question the Spanish and
Portuguese monopoly claims encompassing vast regions in Africa, Asia and
America. However, as we will see, questioning the Iberian claims under the
banner of Mare liberum often conflicted with the competitors’ own further
aspirations for dominance over surrounding seas, or the pursuit of monopoly
trade in their newly acquired colonies. The Dutch Republic itself as well as
England, France, etc. are cases in point.
This contribution aims to investigate the influence of the Mare liberum on
the unfolding of international law in early-modern history as it can be traced
in European interstate treaties. The theory of the freedom of the seas can cer-
tainly not be reduced to the mere slogan Mare liberum. Grotius’s Theory amal-
gamated various lines of argument which were reflected, either singularly or
combined, in international law. Apart from the freedom of the sea, Grotius
focuses on the freedom of trade and the freedom of contract for non-European
peoples. Admittedly, the treatise Mare liberum was more connected to histori-
cal events than the theoretically more developed book De iure belli ac pacis;
not only in its background but also in its reception and practical effects.
Subsequently this article summarises the origins of Mare liberum first and then

1
Philip II and his successors during the union of the Portuguese and Spanish Crowns (1580-
1640) claimed the monopoly of trade in all known regions outside Europe. Anti-Habsburg
propaganda used this in proof of the accusation of Spanish aspirations to the ‘universal monar-
chy’. This was a famous topos in the political propaganda of early modern times. Somewhat
ironically, the Netherlands’ dominance in world trade at times led to English recriminations
about the Dutch as aspirants to universal hegemony before French politics under Louis XIV was
blamed for that crime. See Steven C.A. Pinkus, ‘Popery, trade and the universal monarchy: The
ideological context of the outbreak of the second Anglo-Dutch war’, The English Historical
Review 107 (1992), 1-29 (pp. 20-24).
 A. Weindl / Grotiana 30 (2009) 131–151 133

later elaborates upon the implementation of several lines of reasoning within

international law.

The origins of Mare liberum and its theoretical foundation

The history of the genesis of Mare liberum has often been told2 and need not
be repeated here in detail. Only pertinent data of this history which is central
to Grotius’s argumentation and – as we will see – to the evolutionary impact
of said argumentation within the context of interstate treaties will be stated
here.
In 1603, a Dutch squadron captured the richly loaded Portuguese Carrack
Santa Catarina in Singapore Straits3 as a reaction to various Portuguese naval
activities against the Dutch, who were attempting to establish trade connec-
tions with the Far East. Crew and passengers were released and ship and freight
were auctioned in the Netherlands at a great profit. On the 9 of September the
Admiralty board in Amsterdam decided that the capture of the Santa Catarina
was lawful and that ship and cargo were ‘good prize’ to the captors. Nonethe-
less, many people in the Netherlands considered the capture controversial.
Particularly, according to Grotius, some shareholders of the Vereenigde
Oostindische Compagnie (VOC), mainly Mennonites – or Anabaptists –,
decided to leave the company, in criticism of its militarisation and were
involved in plans to set up a new, peaceful company for trade with Asia under

2
See i.a. traditional views in W. J. M. van Eysinga, Hugo Grotius. Eine biographische Skizze,
(Basel: Benno Schwabe & Co, 1952), pp. 24-5; T.W. Fulton, The Sovereignty of the Sea (London,
1911) and Walther Vogel, Hugo Grotius und der Ursprung des Schlagworts von der Freiheit der Meere
(Berlin: Institut für Meereskunde an der Universität Berlin, 1918). More recent literature includes:
J.K. Oudendijk, Status and Extent of Adjacent Waters (Leyden: Nova et Vetera Iuris Gentium,
Volkenrechtelijk Instituut Utrecht, 1970); Jörg P. Hardegen, Seraphim de Freitas: Über die rechtmäs-
sige Herrschaft der Portugiesen in Asien (Kiel: Universitäts Diss., 1976), pp. 18-29; C.G. Roelofsen,
‘The Sources of Mare Liberum’, Studies in the History of International Law (Utrecht: diss. 1991), pp.
41-75; H. Nellen, Hugo de Groot. Een leven in strijd om de vrede 1583-1645 (Amsterdam: Balans,
2007), pp. 94-97 and M.J. van Ittersum, Profit and Principle, Hugo Grotius, Natural Rights Theories
and the Rise of Dutch Power in the East Indies (1595-1615) (Leiden, Brill, 2006).
On current research see the bibliographies periodically published in Grotiana. E.g. for recent
publications on the law of the sea, see Grotiana 29 (2008), pp. 58, 59.
3
See van Ittersum, pp. 35ff. Traditionally, the position where the Dutch fleet, assisted by the
Johorese, intercepted the Santa Catarina, is vaguely described as ’Strait Malacca’. Thanks to the
studies of Prof. P. Borschberg we are informed in considerable detail about the local situation,
particularly about the Dutch relationship with the Sultanate of Johor. I thank Prof. Borschberg
for permission to refer to the (provisional) text of the paper he presented April 2009 at Tilburg
University.
134 A. Weindl / Grotiana 30 (2009) 131–151

the charter of the French king.4 Thereupon the VOC commissioned a defence
of its position by the young advocate Hugo Grotius to prove the legality of the
capture of the Santa Catarina. The treatise was written in the years of
1604/1605 and was (later) entitled De iure praedae and would not be pub-
lished for the next 300 years; yet, an excerpt from its chapter twelve emerged
as the treatise Mare liberum sive de jure quod Batavis competit ad Indicana com-
mercia dissertatio, which was published end of April 1609.5
In the beginning of the year 1607, negotiations began for an armistice
truce of eight months between Spain and the United Provinces in order to
prepare for peace negotiations. In February 1608 a diplomatic conference
started at the Hague. Peace proved unattainable owing to the Spanish insis-
tence as regards to the key issues of the Republic’s religious regime and the
Dutch infraction of the Iberian Monopoly outside Europe. Negotiations,
however, continued under French/English mediation and led to a truce of
twelve years.6 These negotiations were – during the two years of their devel-
opment – accompanied by the brisk activity of Hugo Grotius. In April 1607,
he composed two memoranda supporting the Dutch conduct of negotia-
tions. The Observationes juridicae dealt with the deficient legal titles of the
archdukes as to the sovereignty of the Netherlands. Another memorandum
for the directors of the VOC summarized their options in case of a peace
treaty in Europe. This second memorandum obtained much more attention,
and reasoned that their High Mightinesses the States-General were entitled to
revoke the Company’s charter as a concession to the Catholic king, provided
that they would pay compensation to the shareholders of the VOC. This kind

4
Grotius, probably intentionally, misrepresents the situation as regards the opposition to the
VOC. This was not, certainly not mainly, composed of pacifist Mennonites. Opponents and
would-be competitors were rather to be found among merchants dissatisfied by their exclusion
from East Asian trade and/or among participants disappointed by the poor financial results of
the Company. Malcontents, however, found themselves powerless against the very strong pres-
sure-group constituted by the Company directors, who held entrenched positions in local and
provincial government. The attempt to found a ‘French’ company was thwarted by
Oldenbarnevelt’s diplomatic efforts. Van Ittersum, Profit and principle, pp. 167ff.
5
English translation by R. Van Deman Magoffin: Hugo Grotius, The Freedom of the Seas: or,
The Right Which Belongs to the Dutch to Take Part in the East Indian Trade, (New York: Oxford
University Press, 1916) see: http://socserv2.mcmaster.ca/~econ/ugcm/3ll3/grotius/Seas.pdf
(viewed 17/11/2008).
6
The truce was concluded on 9th of April 1609 between the States General and the Archdukes,
the sovereigns of the ‘Spanish Netherlands’, acting on behalf of Philip III as well. Spain acceded
to the truce officially on 7th of July. See Beitritt zum Waffenstillstand von 1609 IV 9, Spanien,
1609 VII 7, in Heinz Duchhardt/Martin Peters, www.ieg-mainz.de/friedensvertraege (viewed
22/9/2008).
 A. Weindl / Grotiana 30 (2009) 131–151 135

of political option naturally resulted in increased lobbying by the directors of

the VOC. In January 1608 they commissioned another memorandum that
became the source of two pamphlets published anonymously in the course of
the year, which advocated two options: either to continue the war outside
Europe or to insist on the right of global trade. A withdrawal from Asia, it
was argued, would have disastrous economical consequences for the United
Provinces. The power of the Dutch marine, strengthened by the ventures of
the merchants, would vanish, and the Dutch thereby would become useless
as allies to England and France. Finally, the Dutch treaties with the Asian
allies had to be observed and these allies could not to be turned over to the
mercy of the Portuguese and the Spaniards. This line of argument must rather
be seen as an instrument to gain French and English support than to be taken
into account within the internal Dutch struggles between supporters and
opponents of a continuation of the war with Spain. Whatever would be the
outcome, in the last resort the King of Spain denying the Dutch their natural
right to the freedom of trade was to be blamed.
It seems that Grotius was not directly involved in this lobbying. On request
of the Dutch chief negotiator, the Advocate7 Oldenbarnevelt, he even held
back from publishing his Mare liberum till after the truce was concluded, in
order to avoid jeopardizing the treaty. Nevertheless, after its publication, Mare
liberum served to substantiate the implementation of the stipulations of the
truce as far as the East Indies were concerned.8
Although the Spanish terms of permission for the VOC to trade with Asia
fell short of what the Dutch had hoped to achieve at the truce negotiations, a
previously unimaginable concession was wrested from the Iberian powers.
Firstly, the main document of the truce stipulated that outside Europe trade
was allowed only with the permission of the Spanish King (Art. 4) and that the
truce would come into power there with a one year delay due to the difficulties
of communication. However, for the very first time a secret additional article9
conceded to a non-Iberian state and its subjects the right to trade with princes
outside of Europe who granted a permit to that end. A declaration of the
intermediary powers France and England confirmed the additional article and
even banned Spanish subjects from trade at places held by the Dutch, unless
with their permission and vice versa.10

7
The more familiar title for the office: ’Grand Pensionary’ was introduced after Oldenbarn-
evelt’s demise.
8
See van Ittersum, Profit and principle, p. 357.
9
It is supposed that Philip III never ratified the additional article. See van Ittersum, p. 357.
10
See Duchhardt/Peters Beitritt zum Waffenstillstand von 1609 IV 9, Spanien, 1609 VII 7
www.ieg-mainz.de/friedensvertraege (viewed 22/9/2008). Literally, the additional article says:
136 A. Weindl / Grotiana 30 (2009) 131–151

We do not know exactly, whether the VOC reacted to this outcome with
enthusiasm or disappointment. It may be assumed that it was not possible to
achieve more concessions from Spain. An agreement with the Dutch that
would not impede or terminate their expansion in the East and West Indies,
would have been worthless to Spain. The Truce granted the Dutch the right to
trade with the Spanish possessions in Europe. For good reason, the Spanish
government considered this as pivotal to the economic prosperity of the
Dutch.11 The guarantee of the Spanish/Portuguese possessions outside of

‘Comme ainsi soit que par l’article quatrième du traité de la trefve fait ce mesme jour entre la
Majesté du Roy Catholique, les Serenissimes Archiducs d’Autriche d’une part, et les sieurs Estats
Generaux des Provinces-Unies, d’autre, le commerce accordé ausdits sieurs les Estats et à leurs
sujets, ait esté restreint et limité aux royaumes, pays, terres, et seigneuries que ledit sieur roy tient
en l’Europe et ailleurs, esquels il est permis aux sujets des roys et princes qui sont ses amis et alliez
d’exercer ledit commerce de gré à gré; et outre ce, ledit sieur roy ait declaré qu’il n’entendoit
donner aucun empeschement au trafic et commerce que lesdits sieurs les Estats et leurs sujets
pourront avoir cy-après en quelque pays et lieu que ce soit, tant par mer que par terre avec les
potentats, peuples, et particuliers qui le leur voudront permettre, ny pareillement à ceux qui
feront ledit trafic avec eux, ce que toutesfois n’a esté couché par escrit audit traité. Or est-il, que
ce mesme jour, neufvième Avril mil six cents neuf, qui est celuy auquel ladite trefve a esté
accordée, les sieurs Marquis Spinola, President Richardot, Mancicidor, frere Jean de Neyen, et
Verreiken, au nom et comme deputez tant dudit sieur Roy que Archiducs, en vertu du mesme
pouvoir à eux donné et sous la mesme promesse de faire ratifier en bonne et deuë forme ce
present escrit avec le traité general et dans le mesme temps, ont promis et prometent au nom
dudit sieur Roy et de ses successeurs pour le temps que ladite trefve doit durer, que Sa Majesté
ne donnera aucun empeschement, soit par mer ou par terre, ausdits sieurs les Estats ny à leurs
sujets, au trafic qu’ils pourront faire cy après es pais de tous princes, potentats, et peuples, qui le
leur voudront permettre, en quelque lieu que ce soit, mesme hors les limites cy-dessus designés,
et par tout ailleurs, ny pareillement à ceux qui feront ledit traffic avec eux, et d’effectuer tout ce
que dessus de bonne foy, en sorte que ledit trafic leur soit libre et assuré, consentans mesme afin,
que le present escrit soit plus autentique, qu’il soit tenu comme inseré au traité principal, et fai-
sant partie d’iceluy. Ce que lesdits sieurs Deputez des Estats ont accepté.’ The declaration made
by England and France confirming the additional article says: ‘Certiffions aussi les deputez des
dits sieurs archiducz avoir consenty et acordi tout ainsi que les dits Estatz et leurs subjetz ne
pourront trafficquer aux portz, lieux et places tenues par le Roy Catholicque aux Indes, s’il ne le
permet, quil ne sera loisible non plus a ses subjetz de trafficquer aux portz, lieux, et places que
tiennent les dits sieurs Estatz en dites Indes, si ce n’est avec leur permission. Et outre ce que les
deputez des dits Estatz ont declaré plusieurs fois en notre presence [et] des deputez des dits
Archiducz, si on entreprend sur leurs amis et alliez en dits pays qu’ilz entendent les secourir et
assister, sans qu’on puisse pretendre la trefve estre enfreinte et violee a cest occasion.’ Cited
according to Frances Gardiner Davenport, European Treaties Bearing on the History of the United
States and Its Dependencies. (Washington: Carnegie Institution of Washington, 1917), p. 267-8,
see: www.questia.com/PM.qst?a=o&d=23629152 (viewed at 24/9/2008).
11
Even if during the Dutch/Spanish armed conflict economic relations between the parties
subsisted to a remarkable degree, the lawful, undisguised trade of the Dutch during the Truce
with the Iberian Peninsula and Naples/Sicily was certainly far more profitable than their former
‘smuggling’ activities.
 A. Weindl / Grotiana 30 (2009) 131–151 137

Europe was the compensation for this concession. As was to be expected, the
VOC used this one year period before the truce came into effect in the East
Indies to expand its possessions in Asia and to strengthen its military posi-
tion.12 But that was a practical precaution. To us, the issue is whether in the
extra-European arrangements of the Truce, the doctrinal positions taken in
Mare liberum had been compromised.
At first sight, the additional stipulation that the parties would act within
their rights by excluding each other from their ‘possessions,’13 seems in contra-
dictory to the reasoning in Mare liberum. Therein Grotius denied the right of
any sovereign to forbid access to his territory. A fortiori the Portuguese who
were not sovereigns either of these people or of the sea routes, as he shows
verbosely, were not allowed to hinder the trade of two nations.14 Yet, did not
the mutual prohibition to trade within possessions of the other exactly stipu-
late this? As shall be revealed the formulation of the additional article preluded
the development of a restrictive regime for ‘the freedom of the seas’ as regards
navigation outside of European waters. Also, access to the particular posses-
sions of the treaty partners outside of Europe was limited. For the duration of
the Truce the parties obligated themselves to abstain from contact with the
other party’s possessions. The States General prohibited their subjects to set
sail to the Spanish and Portuguese ‘Indian possessions’ while the Spanish
Crown accepted –for the time being– the exclusion of its subjects from terri-
tories held by the Dutch. Yet the lack of a clear definition of the possessions of
both parties raised the questions, what were the actual limits of their territorial
application. What was the status of the ‘allied’ Asian political units which the
Dutch as well as the Portuguese included in their exclusive sphere?15

12
See van Ittersum, Profit and principle, pp. 281-2.
13
Above, n. 11: ‘Certiffions […] que les dits Estatz et leurs subjetz ne pourront trafficquer
aux portz, lieux et places tenues par le Roy Catholicque aux Indes, s’il ne le permet, quil ne sera
loisible non plus a ses subjetz de trafficquer aux portz, lieux, et places que tiennent les dits sieurs
Estatz en dites Indes, si ce n’est avec leur permission.’ (emphasis added)
14
It is said literally: ‘It follows therefore [from natural right of navigation, A.W.] that the
Portuguese, even if they had been sovereigns in those parts to which the Dutch make voyages,
would nevertheless be doing them an injury if they should forbid them access to those places and
from trading there. Is it not then an incalculably greater injury for nations which desire recipro-
cal commercial relations to be debarred therefrom by the acts of those who are sovereigns neither
of the nations interested, nor of the element over which their connecting high road runs? Is not
that the very cause which for the most part prompts us to execrate robbers and pirates, namely,
that they beset and infest our trade routes?’ Grotius, Freedom of the Seas, p. 14.
15
Normally ‘own possessions’ to Europeans meant areas where they had alliances with non-
European princes and peoples or own fortresses and garrisons. See van Ittersum, Profit and prin-
ciple, p. 281. Nevertheless in the Truce the terminus was not defined.
138 A. Weindl / Grotiana 30 (2009) 131–151

This points to the three aspects of the freedom of the seas slogan as pre-
sented by Grotius in Mare liberum. Initially there is the issue of freedom of
navigation because the ‘ocean was stateless space unable for acquisition in a
juridical way, a res extra commercium’.16 This right was indispensable to the
second facet which is the actual freedom to trade with foreign areas because
only if the former should be enforced could the latter be carried out.17 The
freedom of contract of non-European peoples, which in the case of the Dutch
had to be defended against the Portuguese, was also closely related.18 These
three topics will be considered consecutively.

The Freedom of the Seas

As regards to the legal status of the sea there can be no doubt of the radical
character of Mare liberum. Grotius’s absolute denial of the possibility of the
appropriation of the oceans by any state and in its consequence the assertion
of a total freedom of navigation sounded a new tone in the debate. Though
Grotius could invoke some Roman legal maxims, there was a medieval and
early modern tradition of the ‘Sovereignty of the seas’, the exercise of exclusive
jurisdiction by coastal states over a broad expanse of adjacent seas. On the
threshold of the seventeenth century the emerging nation-states began with
increased vigour to claim dominance over their surrounding seas in accor-
dance with their special interests. The stir created by Mare liberum may actu-
ally have contributed to the spate of publications in defence of the exclusive
rights of States. Thus, several Italian authors composed treatises defending the
classical claims of Venice for dominance over the Adriatic Sea.19 However,
England offers the major illustration.

16
Ralf Richter, ‘Die Freiheit der Meere heute’, Rostocker Philosophische Manuskripte 23
(1982), 17–31 (p. 18), my translation.
17
See Vogel, Hugo Grotius, p. 20.
18
Grotius did not mention that point in Mare liberum. Nevertheless, in his De iure praedae
he defended the treaties concluded by Heemskerk with Asian princes. Religious objections
against siding with non-Christians against a Christian power (Portugal) Grotius brushed aside
with an invocation of the natural right to self-defence. See Richard Tuck, The rights of war and
peace (Oxford: University Press, 2001) pp. 93-4.
19
The writers were Pacius, Mattherius, Francipani, Magenius and Zambono. A bibliography
of seventeenth and eighteenth-century publications on the law of the sea from Mare liberum on,
in D.H.L. von Ompteda, Literatur des gesamten natürlichen und positiven Völkerrechts (Regensburg
1785; repr. Aalen: Scientia 1963), pp. 521-530). On Pacius and the Genoese author Burgus,
Oudendijk, Adjacent Waters, pp. 69-74).
 A. Weindl / Grotiana 30 (2009) 131–151 139

In 1602, the English king had sent negotiators to Denmark to bargain the
issue of ‘Dominium maris’, with instructions to oppose the Danish claims of
ownership of the sea between Norway and Iceland, and to suggest a shared
dominance of both countries, each up to the middle of the sea in between the
two countries, analogous to the territorial division of rivers. Obviously, the
parties would not be allowed to constrain fishing and trade.20 Indeed, since the
mid-sixteenth century, the English repeatedly had questioned the monopolies
of Spain and Portugal by title of the Papal bull Inter caetera. English criticism
concentrated on the alleged Spanish/Portuguese rights over regions not actu-
ally taken in possession. Furthermore, they doubted the rightfulness of a spe-
cial treatment for non-European territories as opposed to trade practices in
Europe.21 After the accession of James I in England and his peace treaty with
Spain in 1604, English policy turned against the Dutch. James’s attempts to
tax the Dutch herring fishery between the Shetland Islands and the Kentish
coast steered the course towards protectionism, which on the face of it was not
in accordance with the policy towards Denmark that left trade and fishery
unrestrained.22 The order decreed by James in 1609 to that effect, was fol-
lowed by diplomatic vicissitudes with the United Provinces, which do not
have to be repeated here in detail. In the present context, it is important to
note that the Dutch claimed a special exemption from the tax based on the
Anglo/Burgundian Magnus Intercursus of 1496.23 This complicated the politi-
cal/legal debate and made it possible for both parties to escape from a head-on
collision over the issue. English publicists like John Selden, would interpret
the resulting diplomatic stalemate as a recognition of the dominion of the sea
by England.24 The question of whaling in front of Spitsbergen (Svalbard)
resulted in similar struggles. Denmark/Norway claimed the Dominium maris
there because of ancient Norwegian possession rights, England because of first
discovery, and the Dutch claimed at least the right to untroubled if not exclu-
sive whaling.25

20
See Tuck, The rights of war and peace, p. 112.
21
See ibid p. 111 and A. Weindl, Wer kleidet die Welt? Globale Märkte und merkantile Kräfte
in der europäischen Politik der Frühen Neuzeit (Mainz: Philipp von Zabern, 2007) pp. 80-5.
22
See Tuck, rights of war and peace, p 114. The English/Scottish jealousy of the Dutch eco-
nomic success, particularly of their massive herring fishery was very keen. Such a sentiment was
absent from the relations between England and Denmark/Norway.
23
See Fulton, The Sovereignty of the Sea, passim; Roelofsen, Studies in the History of International
Law, p. 149.
24
See Vogel, Hugo Grotius, pp. 27-9.
25
See Ibid. p. 29.
140 A. Weindl / Grotiana 30 (2009) 131–151

From England came also literary refutations of Grotius’s treatise. Not only
James still in 1609 forbade the distribution of the treatise, in 1615 William
Welwood attempted to refute Grotius in his treatise De dominio maris, iuri-
busque ad dominium praecipe spectantibus assertio breuis et methodical.26 Only
one year later John Selden composed a rebuttal to Grotius, which due to dip-
lomatic considerations toward Denmark was published only in 1635 as effec-
tively an authorized statement of the English government view.27 Since Grotius
was the Swedish ambassador in Paris at this time – a position he held for ten
years (1635-1645) – he abstained from an answer to Selden. At this time
Sweden claimed the sovereignty of the Baltic Sea.28
All states participating in this discussion, Spain and Portugal being the
unsurprising exceptions, displayed a pronounced flexibility in their line of
arguments. England, Denmark and Sweden, all of whom in Europe claimed
dominion over the seas, alleged the freedom of navigation and trade in favour
of their interests outside of Europe. The Dutch on the other hand, during
their truce with Spain and after a certain consolidation of their trade in Asia,
denied this combined freedom of navigation and commerce to their English
competitors. The denial of the right of sea occupation did not, according to
the Dutch, imply the right to free trade in the Moluccas. As the English some-
what bluntly remarked: ‘With the Dutch it is Mare liberum in Europe and
mare clausum in Asia.’29
The treaty of Westminster which ended the first English-Dutch War in
1654 contained an article on the right to salute at sea. The English claim that
was granted therein stated that within ‘the English Seas’ foreign warships had
to salute English men-of-war first. According to the English this clause, which
was confirmed and extended in the treaty of Westminster (1674), amounted
to a recognition of the English dominion over the ‘English seas’. However, to
the Dutch it represented merely a compliment paid by the Dutch Republic to
the English King.30

26
See William Welwood, De dominio maris, iuribusque ad dominium praecipue spectantibus
assertio breuis et methodica, (London: 1615) online: http://gateway.proquest.com/openurl?ctx_
ver=Z39.88-2003&res_id=xri:eebo&rft_id=xri:eebo:image:20315 (viewed 29/9/2008).
27
See Tuck, The rights of war and peace, pp. 115-6.
28
See Eysinga, Hugo Grotius, pp. 102-22.
29
Ascribed to Sir George Downing. Cited according to C. G. Roelofson, ‘The Freedom of the
Seas: an Asian inspiration for Mare Liberum?’, in Legal record and historical reality: proceedings of
the Eighth British Legal History Conference, Cardiff 1987, ed. by Thomas G. Watkin, (London,
Ronceverte: Hambledon Press 1989), pp. 51-70, p. 65.
30
Some scholars incorrectly mention the payment of fishery rights by the Dutch to the
English government after that treaty. See Duchhardt/Peters, 5 IV 1654 Friedensvertrag von
 A. Weindl / Grotiana 30 (2009) 131–151 141

It is of importance to note that the principle of the freedom of the sea

became accepted only in a weakened form following the Treaties of Utrecht in
1713. Significantly, the codification of the various trade monopolies of the
European colonial powers detached the question of the freedom of the sea
from the freedom to trade. Therefore, the principle loosely formulated by
Bynkershoek, which restrained sovereignty over the sea of the riparian state to
the range of a gunshot, could gain recognition little by little.31

The Freedom of Trade

The truce of 1609 accorded the Dutch a new and indeed unique position as
holding some exclusive trading rights in Asia which were recognized by the
Spanish Monarchy. A piece of paper had transformed the VOC from an
endangered organisation of interlopers and ‘pirates’ preying upon the estab-
lished Portuguese trade, into the Dutch equivalent of the Portuguese Estado da
India. The VOC was indeed a territorial and maritime power conducting its
own foreign policy in the Far East. This new status was reflected in the attitude
of the other European powers. They tried to gain trade advantages from the
VOC within what was now recognized as the ‘Dutch sphere of interest’.32 This
led first and foremost to an Anglo/Dutch showdown. The English East Indian
Company (EIC) continued its profitable trade with the inhabitants and local
authorities of the Spice Islands in spite of the VOC’s pretensions to the
monopoly of trade in nutmeg and cloves. Both companies met in a formal
conference for the first time in 1613 at London in order to establish an
agreement for trade with the Spice Islands. The English invoked Grotius’s

Westminster Generalstaaten, Großbritannien, www.ieg-mainz.de/friedensvertraege, Art. 13 men-

tions the duty for the Dutch to salute English ships in British seas, without defining their exten-
sion but adding ‘eo modo quo ullis retro temporibus sub quocunque anteriori Regimine unquam
observatum fuit’ (as has been heretofore accustomed). That formulation left the geographical
extension of British seas to the interpretation of both treaty partners or in cases of doubt to the
stronger military force in situ. For only a part of the additional articles lamentably, see Clive
Parry, The Consolidated Treaty Series, (New York: Dobbs Ferry, 1969-1981), Vol. III, pp. 253-6.
31
See Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Berlin:
Duncker und Humblot, 1974; 1st edn, 1950), p. 153. Even though Schmitt misjudges the func-
tion of the sea as a ‘Raum freier Krafterprobung’ (space of free trial of strength, [my translation])
he is right with his assumed watershed of 1713 because Europeans did not need dominion of the
sea anymore to enforce their trade monopolies, as will be argued below. On Bynkershoek see
Oudendijk, Adjacent Waters, p. 108; also K. Akashi, Cornelius van Bynkershoek: his role in the
history of international law (The Hague: Kluwer, 1998), pp. 125, 126.
32
This is of course an anachronistic use of a nineteenth-century term.
142 A. Weindl / Grotiana 30 (2009) 131–151

argumentation in Mare liberum. They argued that freedom of navigation and

trade was a universal fundamental right which could not be legitimately
restrained because of the treaties of the VOC with the sovereigns of the
Moluccas. Did these radjas have indeed the authority to exclude third parties
from trade with their subjects? Doubtlessly, the structure of authority in the
various political units of the Indonesian archipelago was anything but clear-
cut, at least to European observers.33 Grotius was head of the Dutch delega-
tion to the Anglo-Dutch colonial conference. Later scholars accused him of
duplicity and opportunism because of his conduct at the negotiations.34 As
spokesman of the VOC he advocated that the natural law of freedom could be
regulated by the operation of another natural law principle: pacta sunt ser-
vanda (contracts had to be honoured).35 Finally, the negotiations of 1613
failed as well as the negotiations two years later due to the rigid position of the
Dutch. The VOC liked to link concessions for trade with the Spice Islands to
an alliance in the war against the Portuguese Estado da India. That idea
encountered the resistance of England’s King James I who did not want to
endanger his peace with Spain.36 After all, in 1619 both companies achieved a
defensive alliance for the Spice Islands, by which they tried on the one hand
to settle the differences by dividing the trade amongst themselves, and on the
other hand to eliminate unwanted competition by common military action.
Although article three of the treaty stipulated freedom of trade for both com-
panies in the East Indies37 and article 27 forbade the exclusion of the other
party by fortresses or delivery contracts,38 freedom of trade is no longer

33
See e.g. Borschberg on the Malay sultanate of Johor. The situation in the Moluccas, divided
between the sultanates of Ternate and Tidore was complicated by the semi-autonomous position
of local governors. The Banda archipelago was something like a peasant federal republic. As the
English pointed out, in spite of the VOC’s contract, the Bandanese kept the Dutch fortress
under constant siege and the Bandanese preferred to sell their nutmegs to English and Asian
merchants. See van Ittersum, Profit and Principle, pp. 360-1.
34
See e.g. Charles Henry Alexandrowicz, An Introduction to the History of the Law of Nations
in the East Indies (Oxford: Clarendon, 1967), pp. 57–60, van Ittersum, Profit and Principle,
pp. 363-5.
35
See van Ittersum, Profit and Principle, p. 362. See also the following chapter.
36
See ibid. p. 363
37
It says literally: Le Commerce et le Traffiq sera libre és Indes Orientales tant pour la
Compagnie d’Angleterre que pour celle des Provinces Unies, tellement que chacune desdits
Compagnie y pourra employer à son Compte separé & particulier tel fonds & Capital que bon
luy semblera. Duchhardt/Peters, 1619 VI 2 Vertrag über Ostindien Generalstaaten/Ostindische
Kompagnie, Großbritannien, www.ieg-mainz.de/friedensvertraege, (viewed 29/9/2008).
38
Aucune des deux Compagnies ne previendra ny exclurra l’autre à l’advenir soit par moyen
de Fortifications ou de Contracts que l’on voudroit faire cy-après d’aucune partie des Indes, mais
tout le Traffiq sera libre & commun à l’une & l’autre en chaque endroict d’icelles. Ibid.
 A. Weindl / Grotiana 30 (2009) 131–151 143

defended as a matter of principle. Trade was divided for political and military
reasons, which meant both parties accepted the trade of the other. Categorical
freedom of trade would have allowed other competitors as well. Yet this treaty,
however, stipulated the exclusion of third parties. In fact, Anglo/Dutch coop-
eration in Indonesia proved short-lived.
In Denmark’s case the Dutch were more co-operative certainly because they
did not fear any competition from the side of the Danes. In 1621, ministers
of the States-General and Denmark stipulated a treaty (which surely was not
ratified) that allowed Danish subjects to navigate to regions of the East and
West Indies not yet taken into possession by another European power. It also
explicitly respected the treaties both parties had concluded with non-Euro-
pean Sovereigns, thereby maintaining trade monopolies.39 Three years later, an
alliance between France and the States-General postponed the resolution of
the West and East Indies query to further negotiations.40 The indulgence in
the matter of non-European trade at least nominally shown by the States-
General up until the 1620s gave way to the jealous conservation of their own
monopolies after the peace treaty with Spain in 1648.
With the Spanish/Portuguese recognition of the colonial possessions of
non-Iberian states, the call for freedom of trade in regions outside of Europe
disappeared little by little. In a few treaties with Portugal in connection with
securing Portuguese independence from Spain in the years between 1641 and
1669, the United Provinces secured their colonial possessions in territories
formerly claimed by the Portuguese. They also succeeded in securing the
use of certain Portuguese trade connections for themselves.41 In 1641, both

39
See Duchhardt/Peters, 1621 V 14 Allianz von Den Haag and 1621 IX 30_X 10 Rezess von
Bremen, Dänemark, Generalstaaten, www.ieg-mainz.de/friedensvertraege. Article 2 of the treaty
of October 1621 that had to resolve some open issues of the May treaty says literally: ‘A good and
trustworthy friendship and correspondence shall also be and remain between the countries and
subjects of both parties in all navigation, trade, and traffic, by land and water, with ships and
goods, to all realms, lands, islands, and places in the East and West Indies, Africa, Guinea, Terra
Australis, and all such foreign voyages. But the right of each power in the lands, islands, and
places that it either possesses and holds by forts for its defense, or else obtains and possesses
through any kings, princes, or rulers of those lands, by special agreements and treaties concern-
ing commerce, defense, and the like, is hereby in nowise detracted from or prejudiced’, cited
according to Davenport, European treaties, p. 284. Online: http://www.questia.com/
read/23629103?title=31 (viewed 16/8/2008).
40
It was stated: ‘5. Quant au trafficq des Indes Orientales et Occidentales, en sera traicté sur
les lieux par l’ambassadeur de Sa Majesté selon et suivant les memoires et instructions qui luy
seront baillez a cest effect’. Cited according to ibid. p. 288. Online: http://www.questia.com/
read/23629108?title=32 (viewed 16/08/2008).’
41
For example, the Dutch obliged the Portuguese to buy or to charter Dutch ships for the
Brazilian trade if necessary (art. 17). Article 9 confirmed the monopoly of the Portuguese
144 A. Weindl / Grotiana 30 (2009) 131–151

countries restrained the freedom of trade to Europe. Although both nations

were to be allowed to navigate freely to their respective East Indies possessions
the right of undisturbed possession of their particular places and to the con-
servation of their contracts dictated the separation of their respective regions
of influence and interdicted trade with the possessions of the other party.42
Furthermore, the growing economic competition of the Dutch with
England following the Westphalian peace increasingly influenced peace and
commerce treaties, especially those with Portugal. The United Provinces
assured themselves by and by all trade privileges, which English merchants
had enjoyed so far or would enjoy in the future by utilising an article similar
to the generalised most-favoured-nation clause.43 The Spanish/Dutch peace of
Munster went further than earlier treaties in explicitly forbidding trade and
navigation. For the East and West Indies the treaty stipulated trade allowance
according to the established chartered privileges and monopolies (art. 5).
Admittedly, the treaty interdicted not only the trade with, but also navigation
towards the possessions of the other party in the West Indies (art. 6).
This stipulation is in accordance with a general movement of Western
European States towards the protection of their economic interests. The proc-
lamation of the Navigation Act of 1651 by the revolutionary English Republic
is a justly famous example. Henceforth, foreign goods could only be imported
by English ships or shipping from the country of origin. This severe restriction

Brazilian company as matter of principle and barred the Dutch from trade with sugar and Brazil
wood to Portugal. See Duchhardt/Peters, 1641 VI 12, Waffenstillstand und Beistandspakt von Den
Haag, Generalstaaten, Portugal, www.ieg-mainz.de/friedensvertraege (viewed 2/11/2008).
42
Article 6 says: ‘E hua, e outra parte esteja liure, e segura em seus tratados, e em seus contra-
tos’. In Art. 7: ‘Tambem será liure a cada hua das partes, navegar, igualmente possuir seus lugares,
e exercitar seu comercio, sem impedimento algum ….’ Even if this clause did not forbid explic-
itly trade at places of the other party, certainly the treaty partners agreed that the fulfilment of
delivery contracts banned the other party from the trade. Cited according to Carlos Calvo,
Recueil complet des traités, conventions, capitulations, armistices et autres actes diplomatiques de tous
les états de l’Amérique latine compris entre le golfe du Mexique et le cap de Horn, depuis l’année 1493
jusqu’à nos jours. Tome premier précédé d’un mémoire sur l’état actuel de l’Amérique, de tableaux
statistiques, d’un dictionnaire diplomatique, avec une notice historique sur chaque traité important
(Besançon: J. Jacquin, [1862?]), Vol. I, p. 58, online: http://gallica.bnf.fr/ark:/12148/
bpt6k958603/f158.table (viewed 5/12/2008). For the Latin text see Duchhardt/Peters, 1641 VI
12 Waffenstillstand und Beistandspakt von Den Haag, Generalstaaten, Portugal, www.ieg-mainz
.de/friedensvertraege (viewed 24/11/2008).
43
In the treaty of 1661 it is said: ‘Tambem poderá a nação hollandeza licitamente e de direito
em quanto a este particular toca, usar e gosar dos mesmos meios, de que os Inglezes em virtude
de algum tratado, ou por rasão do uso quotidiano gosam, ou pelo tempo em diante houverem de
gosar;’ See Calvo, Recueil, vol. I, p. 119, Art. 3, online: http://gallica.bnf.fr/ark:/12148/
bpt6k958603.image.f220.langEN (viewed 24/08/2009).
 A. Weindl / Grotiana 30 (2009) 131–151 145

of the role of foreign shipping was of course directed at the Dutch middlemen.
Freedom of trade, the maxim which was invoked by the English at the Colonial
Conferences of the 1610s, had by now if not totally disappeared from English
argumentation but had at least been modified. Circumstances dictated the
essentially opportunistic policies adopted. Up until the eighteenth century,
the EIC could hardly be called a ‘colonial power’ in Asia. Consequentially,
English policy was interested in reducing the impact of Dutch and Portuguese
monopolies. In India and Indonesia the EIC could only operate by cultivating
friendly relations with Asian rulers. Here advocating a natural right of free-
dom of trade against the Dutch was still appropriate.
An entirely different situation was present in the Americas. West Indian
colonies had to be valorised by establishing plantation economies and by
binding them to the mother country by trading monopolies. This economic
necessity resulted in a change in the pattern of argument of free trade in
Europe. Disputes about free trade disappeared in discussions about trade with
non-European regions. The same was true for the English as well as for the
Dutch, the French, the Danish and the Swedish. Also, from the second half of
the seventeenth century onwards, the Spanish monopoly system was even
acquiring an unwonted sympathy in London, Amsterdam and Paris. If the
Spanish American colonies were to be officially opened to ‘free trade’, the
trade to these colonies would be exposed to a fierce competition. So, politi-
cians and merchants having accommodated themselves to the existing situa-
tion were satisfied with their trade advantages gained via smuggling and other
informal channels. It is hardly surprising that when the Spanish trade monop-
oly appeared to fail due to a lack of military power, a sole monopoly namely
that of the slave trade with Spanish America, found its way into European
international law. In connection with the quarrels about the Spanish succes-
sion, first the French and afterwards the British government guaranteed the
Spanish monopolistic law for American trade in exchange for the assignment
of the African slave trading privileges to Spanish America.44 The very same
United Provinces, which had struggled against the universal claims of the
Habsburg monarchy with the call for the freedom of trade and navigation in
their peace and commercial treaty with Spain, now undertook themselves the
maintenance of the Spanish monopolistic system exempting only the said
Asiento and promised to help to enforce this monopoly.45 The ‘pacte colonial’

44
See Andrea Weindl, ‘The Asiento de Negros and international Law’, Journal of the History
of International Law, 10 (2008), pp. 229-257, (pp. 235-47).
45
See Duchhardt/Peters, Friedens- und Handelsvertrag von Utrecht 1714 VI 26 Generalstaaten,
Spanien, www.ieg-mainz.de/friedensvertraege. Article 31 says literally: ‘S[u] M[ajestad] C[atolica]
146 A. Weindl / Grotiana 30 (2009) 131–151

had become a feature of European international Law. Its definition is to be

found in the principles formulated in the mid eighteenth century by Malachy
Postlethwayt:
All nations have a natural right to regulate the trade and navigation of their dis-
tant colonies, by enacting such laws within themselves, and by making such trea-
ties with foreign nations, as they shall judge the most conducive to the general
interest of their mother-countries.
From this principle it is that Great Britain does not admit either of its own, or
the subjects of any nation, to carry on trade with the British colonies, but under
the peculiar restriction and limitation of British laws, and national treaties. The
Spaniards, also, having an equal right to regulate the trade of the colonies in
America, the subjects of no nation whatever can carry on a trade with those colo-
nies, but under the peculiar restriction and limitation of Spanish laws, and
national treaties. To do otherwise is violating those laws, or treaties ; carrying on
contraband commerce, and breaking friendship with that kingdom. …
It is extraordinary that any one should treat such contract [the Asiento, A.W.]
in the light of a monopoly, and injurious to the other traders of the nation who
have no share therein: for a monopoly implies nothing less than that the general
interests of trade are thereby sacrificed to the particular interest of a few. But this
was neither the case of the late, nor is it that of the present, British assientists;
because the trading interest of Great-Britain in general never did, nor ever will,
legally enjoy the privilege of supplying the Spanish West-Indies with negroes. For,
in the grant of such a contract, Spain will never allow it but to certain particulars,
exclusive of all other the subjects of that, or any other nation; …46
Free trade stipulations in a semi-colonial context reappeared in the nine-
teenth century when European governments imposed free trade on political
units in Asia, Africa and the South Pacific. Free trade served both as an instru-
ment for European47 expansion and as part of the European civilising mission.

promete no permitir que alguna nazion estrangera qualquiera que sea, y por qualquiera razon, û
debaxo de qualquier pretexto, embie Nabio ô Nabios, û baya â comerziar â las Yndias Españolas;
Y al contrario S[u] M[ajestad] se empeña de restablezer ŷ mantener despues la nabegazion ŷ
Comercio en estas Yndias, dela manera que todo estaba durante el Reynado del difunto Rey
Carlos segundo, ŷ conforme â las leyes fundamentales de España que prohiben absolutamente â
todas las naziones extrangeras la entrada ŷ el Comercio en estas Yndias, y reserban uno y otro
unicamente â los Españoles subditos de su dicha Magestad Catt[oli]ca, ŷ para el cumplimiento
de este Artículo los Señores Estados Generales prometen tambien ayudar â S[u] M[ajestad]
C[atolica] bien entendido que esta regla no perjudicará al contenido del contracto del asiento
de Negros echo ultimamente con su Magestad la Reyna dela Grande Bretaña.’ (viewed
28/02/2008).
46
Malachy Postlethwayt, The Universal Dictionary of Trade and Commerce (New York: Kelley
1971, Reprint of the 3rd edn of 1771; 1st edn London, 1751), without pagination.
47
From the 1840’s on we have of course to include not only the US but also the Latin
American states in the class of ‘civilized nations’, the full participants in the European Law of
Nations.
 A. Weindl / Grotiana 30 (2009) 131–151 147

The ‘pacte colonial’ had been succeeded by the free trade regime. Both served
the same purpose. Indeed: ‘international law and free trade regime … served
as vehicles for a non-dominant Regime-colonialism.’48

Non-European Peoples as Subjects of International Law

The third aspect of Grotius’s argumentation in his Mare liberum is the freedom
of contract of non-European political entities. Even though Grotius’s treat-
ment of that issue was dealt with rather indirectly,49 it formed the basis of the
VOC trade in East Asia; it served as an argument for the continuation of their
trade despite Spain’s and Portugal’s claims, and as a defence against British
claims for admission to trade there during the colonial conferences in 1613
and 1615.
Ultimately, in the truce of 1609, neither freedom of trade nor freedom of
the seas had been achieved but merely the allowance to enforce contracts con-
cluded with local princes and peoples. Grotius argued against the claims of the
English East India Company using the principle pacta sunt servanda; which, if
in doubt, overruled a general freedom of trade and navigation. Both parties’
line of reasoning is interesting in light of the stipulations actually made in
1619. The British still argued in 1613 and 1615, that besides the general right
of Mare liberum, first of all local Spice Islands politics had by all means allowed
the EIC to conclude their own treaties.50 Secondly, the VOC found itself in a
state of war with the Bandanese and the EIC reasoned that one could hardly

48
Harald Kleinschmidt, Das europäische Völkerrecht und die ungleichen Verträge um die Mitte
des 19. Jahrhunderts (München: Iudicium, 2007), pp. 78-9, (my translation). For this kind of
treaties in general see ibid.
49
Although Grotius did not mention freedom of contract explicitly, he did dwell on the
sovereignty of the Indians. ‘Theses islands of which we speak, [Java, Ceylon and many of the
Moluccas] now have and always have had their own kings, their own government, their own
laws, and their own legal systems. The inhabitants allow the Portuguese to trade with them, just
as they allow other nations the same privilege. […] But in addition to all this, discovery per se
gives no legal rights over things unless before the alleged discovery they were res nullius. Now
these Indians of the East, on the arrival of the Portuguese, although some of them were idolaters,
and some Mohammedans, and therefore sunk in grievous sin, had none the less perfect public
and private ownership of their goods and possessions, from which they could not be dispossessed
without just cause.’ (Chapter 2) In Chapter eight he adds: ‘For surely no one nation may justly
oppose in any way two nations that desire to enter into a contract with each other’, Grotius,
Freedom of the Seas, pp. 14-5, 46. Online: http://socserv2.mcmaster.ca/∼econ/ugcm/3ll3/
grotius/Seas.pdf (viewed 26/11/2008).
50
Above, n. 33.
148 A. Weindl / Grotiana 30 (2009) 131–151

consider the Bandanese as allies of the VOC. Finally even if there did exist
delivery contracts with the VOC, the company had no right to act against
members of the EIC just because only the Bandanese or other Asian parties
were to be punish for the failure of honouring said contracts, especially since
the EIC were no way a party to these contracts.51 The Spice Islands defensive
alliance concluded in 1619 did not mention the freedom of contract of Indian
Sovereigns anymore. The fleet that was required to be built under the treaty
terms should be employed first of all in capturing China trade according to the
special instructions of both companies’ directors. They ordered this fleet to the
Philippines so that they should hinder the Chinese trade with a third party.52
The king of Bantam should be forced, at gunpoint if necessary, to dissolve his
delivery contracts of pepper with China.53 The freedom of contract of Indian
sovereigns was here restrained to the freedom to conclude agreements with
the Dutch or the English East Indian Company. The ban of future exclusion
from trade of the treaty partner by fortresses or delivery contracts men-
tioned earlier, indeed meant a disregard of the freedom of contract of Indian
Sovereigns because a treaty between two partners could not be enlarged uni-
laterally to other partners according to the European concept of international
law of the age.
As mentioned earlier, after 1609 the Dutch had also become administra-
tors of trade monopolies in Asia in European eyes. In 1621 Denmark con-
cluded a treaty with the States-General that permitted Denmark to navigate to

51
See van Ittersum, Profit and Principle, pp. 360-1. Indeed, the English invoked the maxim
‘pacta tertiis nec nocent nec prosunt’.
52
It was said: ‘… la deffence sera employée pour gagner le Commerce de la Chine, & à cette
fin sera la Flotte envoyée aux Philippines, pour empêcher que les Chinois ne commercent avec
d’autres que avec nous’, cited according to Jean Dumont, Corps Universel Diplomatique Du Droit
Des Gens: Contenant Un Recueil Des Traitez D’Alliance, De Paix, De Treve, De Neutralité, De
Commerce, D’échange, de Protection & de Garantie, de toutes les Conventions, Transactions, Pactes,
Concordats, & autres Contrats, qui ont été faits en Europe, depuis le Regne de l’Empereur Charlemagne
jusques à présent. Avec Les Capitulations Imperiales Et Royales…, (Amsterdam: Brunel, 1726) vol
V/2, p. 336, ‘sur l’Article X’. Online: http://gallica2.bnf.fr/ark:/12148/bpt6k1229594.zoom
.r=Dumont+Corps.f338.langEN (viewed 26/11/2008).
53
‘Pour remedier à cet abus [that meant high taxes, A. W.] il sera bon qu’on se serve de voyes
douces & amiables (en representant le pouvoir des deux Compagnies Unies) pour gagner le Roi
de Bantam, afin que lesdites impositions soient absolument mises par lui sur un pied raisonna-
ble. … A cette fin on pourra demander, Que le Roi ait à ôter & aneantir toute sorte de Monopole
que les Chinois ont à Bantam, non seulement avec le sçu du Pagoram; Mais meme par son
Conseil & propre avis.’ Some lines beneath after explaining how to convince the king: ‘Ces
moyens d’accord & d’amitié seront premierement tentés, comme étant les plus doux et les plus
propres, mais si par iceux nous ne pouvons parvenir à nôtre but, en ce cas le conseil de deffence
[which had to implement the orders to the Fleet in Asia, A.W.] será autorisé pour chercher tel
remede qu’il trouvera utile pour la prosperité des deux Compagnies.’ Ibid. p. 337.
 A. Weindl / Grotiana 30 (2009) 131–151 149

territories not taken in possession in the East and West Indies, yet respected
explicitly the treaties of both powers concluded with non-European Sovereigns,
thus maintaining existing trade monopolies.54 In the following period refer-
ences to a general right of trade and navigation vanished more or less from
European international law in lieu of a mutual demarcation and recognition
of trade monopolies. In return, non-European peoples were included in
European international law for the very first time.
The truce of 1641 bargained for ten years between the States-General and
Portugal included East Indian princes with whom the United Provinces or the
VOC had their alliances.55 The treaty partners for Brazil marked out trade
monopolies56 and they committed the definition of African possession rights
to the Africans, because, as it was said, ‘there are various peoples and nations
between them who determine and form the limits.’57 The treaty did not men-
tion African trade.
Finally, the agreements of the Westphalian Peace between Spain and the
States-General included all potentates, nations and peoples with whom one of
both parties kept contracts in order to confirm and observe the stipulations yet
mentioned for the continuation of trade according to the chartered privileges
(art. 5).58
After the Westphalian Peace non-European actors disappeared from inner-
European treaties. Indeed, European and non-European political units still
concluded treaties but these were not an issue of European international law
anymore.59 They had a bilateral character and were essentially considered
as creating obligations for the non-European party. Therefore, even though
the freedom of contract of non-Europeans remained the foundation for the

54
Above, n. 39.
55
See Duchhardt/Peters, 1641 VI 12 Waffenstillstand und Beistandspakt von Den Haag,
Generalstaaten, Portugal, www.ieg-mainz.de/friedensvertraege, Article 3 (viewed 26/11/2008).
56
See above.
57
Cited according to Davenport, European Treaties, p. 344. Online http://www.questia.com/
read/23629152?title=38 (viewed 5/12/2008). For Latin original see: Duchhardt/Peters, 1641 VI
12 Waffenstillstand und Beistandspakt von Den Haag, Generalstaaten, Portugal, www.ieg-
mainz.de/friedensvertraege, Art. 16 and 19: ‘Illud, quidquid tam Lusitani quam subditi harum
Provinciarum in oris Africae possident, nulla indiget limitum divisione, cum inter utrumque
diversae gentes et nationes sortiantur, quae finium limites statuunt et dividunt.’ This was the
only treaty of early-modern Europe that completely committed demarcation between zones of
influence to local policy.
58
Interestingly Africa was not mentioned although Spain theoretically claimed the posses-
sions of Portugal there.
59
Of course an important exception has to be made for the Ottoman Empire, whose position
as both part of the European state system and an extra-European power was unique.
150 A. Weindl / Grotiana 30 (2009) 131–151

creation of the European colonial possessions, the non-European actors ceased

to play a significant role as subjects of international law. By the treaties which
since the mid-eighteenth century turned the relations of Europe into colonial
dominance,60 non-European political units increasingly lost their sovereignty
and therewith their freedom of contract.

Conclusion

In the discussion of the continuity of the principles expounded by Grotius in

his treatise Mare liberum within European international law, one must distin-
guish between three distinct lines of argument. Primarily there is the issue of
navigational freedom based on the concept that the sea is a space not suited to
be possessed by anybody, then there is the idea of the freedom of trade based
on natural law. And finally there is the aspect of the freedom of contract for
non-European peoples, which played a major role in the founding of trade in
the early-seventeenth century – as much as in reality as in the European dis-
cussions about trade with non-European nations.
The argument of freedom of navigation – prior to the freedom of trade –
strengthened the case for expansion for those states who were interested in
overseas trade (apart from Spain and Portugal of course). Simultaneously it
conflicted with certain interests in the European seas itself or even with over-
seas trade after a certain consolidation of colonial possessions. Only upon
conclusion of the Treaties of Utrecht, when different trade monopolies were
confined and codified, did the principle of freedom of navigation become
accepted when it was disconnected from the freedom of trade issue. As of
1800 the prospect of freedom of the high seas outside the conventional three
mile zone was almost accepted by all European powers.61
During the course of the seventeenth and eighteenth centuries two geo-
graphical spheres were established in the political practice of Europe. Although
governments in Europe regulated foreign commerce at times quite drastically
by customs dues and by exempting some commodities from trade (e.g. bul-
lion), in times of peace they could not bar foreign merchants from trading
with their European dominions. In all peace treaties between European pow-

60
See Osterhammel, Kolonialismus. Geschichte – Formen – Folgen (München: Beck, 2006),
pp. 37-9.
61
The present situation has of course been complicated by the introduction of various
‘sovereign rights’ of coastal states over their continental shelf and exclusive economic zone. See
United Nations Convention on the Law of the Sea: http://www.un.org/Depts/los/convention_
agreements/texts/unclos/closindx.htm (viewed 1/12/2008).
 A. Weindl / Grotiana 30 (2009) 131–151 151

ers the right to trade was admitted.62 In respect to non-European territories,

by contrast, European states codified their prevailing trade monopolies in
peace treaties. Commencing with the American colonies, where profits could
only be drawn using trade monopolies, states increasingly stipulated the
mutual recognition of their overseas monopolies. The general right to trade
argument and its conformation by agreement disappeared from European
interstate treaties. The right to free trade as the basis of overseas expansion was
substituted by the duty to fulfil the treaties made with non-European political
units, which, from this perspective, provided the foundation for monopolies
in East Asia. Consequently, the freedom of contract of peoples who stipulated
delivery contracts with Europeans, and the claim for general free trade, were
in direct opposition to each other. What sounds very logical in theory, was not
clear in the practice of overseas trade in the early-modern period. The political
situation in Africa and Asia did not always allow for a clear territorial determi-
nation of the scope of the treaties concluded between European states and
non-European actors. Evidently, Europeans (and natives) interpreted power
dynamics and monopolies to their own benefit. As long as local societies pos-
sessed enough political and military power to play Europeans off against each
other and to maintain their independence in fact, an equilibrium of sorts
existed in the relations between Europeans and non-Europeans. It was only
since the middle of the eighteenth century, as the balance tilted in favour of
the colonial powers, that the non-European63 peoples began to feel that their
sovereignty rights were more and more disregarded. The disappearance of
non-European sovereigns from European treaty texts from the second half of
the seventeenth century on then turned out to be the start of the formation of
an exclusively European international law. Ultimately this allowed European
states the right to define which unit was to be admitted as a sovereign state and
which was not.

62
See Weindl, Wer kleidet die Welt?, pp. 76-7.
63
Bear in mind that sovereignty rights of native American peoples after the successful land
seizure of Spain (and Portugal) apart from the vivid discussions in Spain in the 16th century
played nearly no role in the European debate. Dutch and English conquerors and settlers, how-
ever, did conclude treaties with Americans. Indeed most discussion and practice centred on East
Asia and to a minor degree also on Africa who could only be brought under European control
much later than Asia. See Osterhammel, Kolonialismus, pp. 32-47.
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