A Particular Kind of Dominium: The Grotian Tendency and the Global Commons in a Time of High Arctic Change.
I. Introduction II. Grotius' Concept of Common Use 1. The Significance 2. The Context A. Spanish-Luso Competition B. The Treaty of Tordesillas; Letters of Marques and Reprisal Divided Sovereignty C. Thalassocracy and Mare Clausum D. A Brash Response E. The Political Context III. A Luminous Legacy, A Troublesome Tendency 1. His Precocious Youth 2. His Dazzling Effect on International Law and Relations 3. His Hidden Agenda A. What Mare Liberum Is About IV. The Context Revisited: Another View of Seventeenth Century Holland 1. The 'Roaring Forties' 2. Dutch Commercial Interests and Technological Advantage 3. Grotius'Corporate Agenda A. An Agency of Empire B. The Taking of the Santa Catarina C. Trouble with Frisians and Mennonites; Common Use and No Competition 4. Self Defense and Mare Liberum 5. Requiem for Mare Liberum V. The Grotian Tendency On Display 1. The Twentieth Century Territorialization of the Global Commons 2. The Twenty-First Century Continuation A. The High Arctic I. Continental Shelf Extension Claims II. The Northern Sea Route and the Northwest Passage III. Governance VI. Conclusion
Hugo Grotius (1583-1645) overlooked the North Sea from Holland's shore in the early seventeenth century and observed an "immense, infinite" waterway, (1) so vast it could not be possessed; (2) so unbounded, except by the heavens, (3) it could only admit to uses such as navigation, fishing, and trade. (4) He claimed in Mare Liberum (The Free Sea, 1609), his small pamphlet quickly destined to become a classic, that the seas represented a shared resource, like air, which allowed for a "common use" to benefit mankind. (5) According to Grotius, Providence bestowed on humanity a particular kind of dominium (ownership) over the seas, which, unlike land, granted individuals a freedom of use but enjoined proprietary claims. (6) One could not give away what one never owned, he reasoned; (7) one could not discover what already belonged to someone else, (8) and one could not appropriate what was common to all. (9) According to Grotius, the seas represented a 'res communis', a common good. (10)
By the time Grotius died, Mare Liberum had cycled through thirteen editions, (11) securing its place among the classics of international law. Curiously, far less secure were its main claims that the seas could not be owned and were to be used in common. These assertions generated intense discussion and criticism during his time and ours: Many claim Grotius' view of freedom of the seas has prevailed, (12) yet "few works of such brevity have caused arguments of such global extent and striking longevity." (13)
What did Grotius mean when he labeled the seas a res communis, the use of which was reserved for humanity's benefit? Consider the following points: Almost four hundred years after publication, on August 2, 2007, Russian explorer and parliamentarian, Artur Chilingarov, piloting the mini-submarine, Mir-I, planted a rust-proof titanium Russian tri-color flag on the seabed, 14,000 feet below the ice-covered North Pole. Hailed as a "massive scientific achievement" by Russia's Arctic and Antarctic Institute, (14) and as a stunt by others, (15) the well-publicized gesture generated pithy headlines about a coming 'Race to the Pole' and a new 'Cold War in the Arctic'. (16) But the headlines eclipsed the expedition's far more significant mission, which foretells of Russia's greatest Arctic ambition: (17) To take core seabed samples of the Arctic Basin's massive underwater Lomonosov Ridge to prove to the Commission on the Limits of the Continental Shelf (CLCS) that the geological structure of the seabed of the Ridge is exclusively an extension of Russia's continental shelf. (18) According to the United Nations Convention on the Law of the Sea (UNCLOS,19) which Russia ratified, (20) each coastal state may claim a 200 nautical mile continental shelf as measured from its baseline. (21) Each state may file continental shelf extension claims with the CLCS beyond the 200 nautical mile swath granted by UNCLOS, in accordance with the CLCS' test of appurtenance (22) and UNCLOS Article 76, (23) and show scientifically that its continental margin extends beyond 200 nautical miles and is part of the submerged prolongation of its mainland. (24) Russia's 2001 submission lacked sufficient evidence, (25) but was accompanied by the CLCS's recommendation that it fortify and re-file its claim. (26) Russia has already applied for extensions of its submissions in the Barents, Bering, and Okhotsk Seas and recently signaled it will re-file its Lomonosov submission, along with a submission over the Mendeleev Ridge off the South Siberian Sea. (27) If successful, Russia will be allowed legally to extend its control over about 1.2 million square kilometers of underwater terrain that formerly had been considered part of the "deep seabed," which is the seafloor beyond the scope of national jurisdiction--an area meant to be administered for the benefit of all countries in trust, as part of a Grotian-inspired 'Common Heritage of Mankind'. (28)
Russia's filings portend gloom for the shrinking global commons--as they would enclose almost half of the territory beneath the Arctic Ocean for its own resource exploitation. (29) Moreover, Russia's claims are unexceptional. All circumpolar states are seeking continental shelf extensions into the Arctic cryosphere. (30) Denmark has identified five potential claim areas off the Faroe Islands and its territory, Greenland; (31) Norway presented three separate claims (32) which extend its continental shelf by the equivalent of seven soccer fields for each of its almost 5 million people; (33) Canada's Arctic Ocean extension claim covers three quarters of a million square kilometers; when added to its claims in the Atlantic and Pacific Oceans, Canada's total claim approaches 1.75 million square kilometers, which equals the combined size of its three prairie provinces, Alberta, Saskatchewan, and Manitoba. (34) The United States, although not party to UNCLOS, has amassed scientific evidence to support a continental shelf extension claim, which "could extend more than 600 nautical miles from the north coast of Alaska." (35) One might wonder legitimately what portion of the global commons will be left of the Arctic once circumpolar states complete their Arctic extensions? (36)
Expansive as these claims are, set against the submerged landforms (geomorphology) of the world's smallest and shallowest ocean, (37) they are surpassed by continental shelf extension claims elsewhere. Australia submitted ten claims for continental shelf extension in its surrounding oceans and seas (38) resulting in its 25 May 2012 proclamation of exclusive rights to oil, gas, mineral and biological resources over 11 million square kilometers of continental shelf; (39) New Zealand, Sri Lanka, the United Kingdom, France, Portugal and South Africa filed claims exceeding the scope of Russia's claims; (40) the total area of seabed under review by the CLCS in 2009, involving (at that time) 51 submissions, covered an area almost as large as the North American continent. (41)
Some Arctic claims overlap (42) and will doubtless generate diplomatic negotiations. (43) But focusing on extant and emerging bilateral boundary disputes miss a larger point about the improving technological abilities to exploit resources formerly considered too remote, inaccessible, or unworthy of attention. A rapidly receding polar ice cap (44) and new information about the value of potentially accessible resources (45) have altered circumpolar state calculations dramatically vis-a-vis the interests of the rest of the world, exposing a strong state tendency to 'territorialize' resources formerly considered beyond the control of any state's national jurisdiction. In a variation of this theme, for the first time in history, states are actively contemplating commercial trans-arctic voyages across the fabled Northwest Passage, which traverses the Canadian Archipelagic islands and connects the Atlantic and Pacific Oceans, and the Northeast Passage (a portion of which includes the Northern Sea Route (46)), which connects Asia and Europe via waterways atop Russia. Canada and Russia have long claimed sovereign control over these waterways adjacent to their respective continental landmasses. (47) Both countries regard the passages as "internal waters" and have fortified their claims with domestic environmental and administrative legislation. (48) UNCLOS lends some support to their coast state regulatory claims by acknowledging that costal states may exercise special environmental police powers over ice-covered areas. (49) But global warming has made the legal status of the waterways, and the extent to which they constitute "internal waters" or "international straits" much more of a topical concern to other maritime powers. (50)
In the aggregate, these claims of territorial extension by circumpolar states and numerous other coastal states signify that a dramatic 'territorialization' of geospatial resources is underway. This article argues that it long has been underway. Recognizing this coastal state interest in extending dominium over the seas gives rise to fundamental questions about the global commons, making Grotius' problematic introduction of 'common use' relevant and worthy of reconsideration.
This article investigates the significance of the global commons as a legal construct. It sets the concept of the global commons against the historical backdrop of the law of the sea, which, famously, has been informed by the Dutchman and his seventeenth century classic, Mare Liberum. This article addresses the question: What is the future of the global commons given its historical treatment in pelagic space? In addressing this question, this article argues that the concept itself is based on a problematic reading of Mare Liberum and the context in which Grotius presented it. Additionally, Grotius' heralded reputation compounds this misreading by overshadowing consideration of his conflicted agenda. Grotius' Free Sea thesis is not what many international legal scholars think it to be. In fact, Grotius' misunderstood contribution to international law actually validates the disturbing tendency--herein referred to as the Grotian tendency--of capable states to territorialize emergent claims over unsecured global resources when interests and abilities align. Grotius should be given full credit for his contributions to international law, contributions more complex than history has recorded.
II. GROTIUS'CONCEPT OF COMMON USE
In Mare Liberum, Grotius argued the common seas were part of Nature's plan. (51) Drawing from Roman law and the Greek poet, Hesiod (c. 750. B.C.E.), he recognized three possible legal descriptions of the seas: They could belong to nobody (res nullius), in which case they could be appropriated by individuals through effective occupation; they could belong to everybody, in which case they would form a common possession (res communis), or they could belong to the public (res publicae), in which case they could be subject to administrative regulation. (52)
According to what he labeled "primary law," (53) which was the immutable law of nature (as distinguished from a secondary and mutable law of nations (54)), the seas were a gift from God "not to this or that individual, but to the human race." (55) In this 'original' sense, ownership imparted a universal meaning, (56) which prevented individual appropriations or enclosures of this common area. He noted immutable qualities of Nature's gift--claiming common use was a common right "since the beginning of the world," over which no other right could be asserted. (57) He believed Nature created a hybrid brokerage account for the seas, as "there was nothing to prevent a number of persons from being joint owners, in this fashion, of one and the same thing." (58)
Grotius' particular view of dominium grew out of two proprietary claims relating to the seas: Some things are consumed through use and "therefore admit of no further use" and other things, through use, "are rendered less fit for additional service." (59) To claim 'ownership', a thing (res) had to be consumed or converted and thereby altered from its original condition. A quantitative or qualitative "diversion" of use had to take place in order for the res to become private property. (60) But the seas produce no such diversions. Nature intended them to be free and open because a claim of ownership would serve no purpose; at most, they only could be occupied temporarily. He argued they would always retain their original character following use, undisturbed by consumption (61) and incapable of conversion.
Grotius also construed 'ownership' as an alienable right--as a personal right--which allowed a person "to exclude others from using and benefiting from a thing." (62) But dominium, in this sense, could be established only "through the industry and labor of each man," (63) who also must refrain from unjustly laying hands on the property of others. (64) He claimed wild beasts, fish, and birds were not items assigned for common use, even though nobody owned them, because they could be subjected to private ownership--"provided that someone does take possession of them." (65) This proviso became a pillar of his argument: "For the essential characteristic of private property is the fact that it belongs to a given individual in such a way as to be incapable of belonging to someone else as well." (66) Thus, dominium could be achieved only through physical seizure (apprehensio) leading to private use through the construction or definition of boundaries. (67) Unlike lakes or 'mere rivers', which "wash against the land on all sides," (68) the seas retain a fluid character that wash away bids to occupy or enclose them, (69) making them "forever exempt from ... ownership by the unanimous agreement of mankind," (70)--and forever free.
1. The Significance
Grotius' argument was important for his time and ours. The argument that a thing cannot be appropriated and must be available for use by everybody, as long as its use does not impede someone else's future enjoyment, adumbrated development of the now well-established four high seas freedoms; (71) it stands behind the development of a res communis omnium or res communis humanitatus, conventionally expressed by the Common Heritage of Mankind principle (72) as applied to the moon, (73) the deep seabed, (74) and outer space; (75) it informs debates on international resource management, (76) and arises in legal discussions on intergenerational equity, (77) cultural heritage, (78) climate change, (79) biodiversity, (80) the geosynchronous orbit, (81) cyberspace, (82) North-South relations, (83) Antarctica, (84) sequencing the human genome, (85) and the High Arctic, where recent claims of dominium are advancing as quickly as the polar ice cap is receding. (86) Importantly, Grotius' common use characterization has affected profoundly the development in international law of the global commons--those geo-spatial areas beyond the national jurisdiction of any state, where exploration and exploitation of resources are subject to principles of non-appropriation, common management, peaceful purpose, and preservation for future generations. (87) Sometimes called the "transnational commons," (88) and with distinct connections to common pool resource theory, (89) this area of law presents regulatory challenges in a world conditioned by scarcity. A deeper consideration of Grotius and his times provide helpful context for interpreting the status and prospects of common use in geo-spatial areas where proprietary claims never before have been contemplated. (90)
2. The Context
Grotius' articulation of a common use doctrine was astonishing given the internecine violence that beset Europe throughout his life. (91) He died at the cusp of an age that ushered in, with the Treaty of Westphalia in 1648, a new ordering construct for international relations and the law of nations: Territorial sovereignty. Writing in the 'shadow land' (92) of this new age of state-centric imperium (the power to rule) one cannot help but wonder if he truly intended to introduce a major exception to territorial rule through the articulation of an ownership-free international commons?
a. Spanish-Luso Competition
Grotius' common use argument was contentious, and he knew it, certainly because so few believed it at that time: Luso-Spanish competition for conquest and settlement of the Azores, Madeira, Canary, and Cape Verde Islands earlier in that century prompted Alexander VI to issue four papal bulls that ultimately produced the 1494 Treaty of Tordesillas, (93) which divided the non-Christian world on a north-south line 370 leagues west of the Cape Verde Islands; (94) newly discovered territory west of that line was to belong to the Castilian crown; territory discovered east of that demarcation became the right of Portugal. Commercial monopolies also were granted to the respective crowns in these spheres and other nations could not trade without proper license (cartaz). (95) In effect, Iberian colonizers attempted to divide the western hemisphere in half. (96) Northern European powers balked at this claim of sovereignty in absurdum, but "it would take most of three centuries to sort out the radically new international order that oceanic expansion created." (97)
b. The Treaty of Tordesillas; Letters of Marques and Reprisal; Divided Sovereignty
The importance of the Treaty of Tordesillas related to the sheer size of the appropriation and its distance so far from shore. (98) It was the largest but not the first attempt to close the seas. Sovereigns of this period, even those who objected to the Treaty of Tordesillas, commonly claimed areas they "saw as a continuation of the already-known land masses. If the king had sovereignty over the lands enclosing the sea areas, why shouldn't he also claim the sea between?" (99) Moreover, a self-help enforcement system took hold in fifteenth century Europe; French, German, and English sovereigns joined the Iberians in commissioning 'Letters of Marque and Reprisal,' which empowered privateers to cruise against an enemy's merchant fleet or neutral ships dealing in enemy trade, and seize and return cargo to the sovereign's admiralty courts. If condemned as lawful prize, the spoils would then be sold to indemnify the treasury and reward the auxiliaries for their private, yet war-like, captures at sea. (100)
This loose and abused system of enforcement and spoils-recovery vexed maritime relations for centuries. (101) Privateer to one sovereign meant buccaneer to another. But the issuance of such letters hardened into a relatively uniform practice until privateering was abolished in the 1856 Paris Declaration. (102) This practice modified Jean Bodin's (1530-1596) original idea of absolute and indivisible sovereignty, (103) opened the door to the concept of divided sovereignty through use of auxiliaries, which would characterize "extra-European" practices employed by Dutch and British imperial systems in the East, (104) and informed Grotius' opinion on just war theory, as expressed on the final pages of Mare Liberum. There, Grotius noted: "He who prevents ... or who in any way hinders another in the use of something which is his by common right" creates an injustice, (105) and, absent judicial administration ("where a judgment cannot be given" (106)), the aggrieved can make recourse to just war. Here, Grotius stands almost alone among writers of the early modern age, taking a step backward from positions crafted by important scholastic luminaries such as Aquinas (1225-1274), Vitoria (1492-1546), and the particularly influential Gentili (1552-1608). (107) He justified belligerent actions of private individuals to punish transgressors of the natural order to make right violations of the jus mercandi (the freedom to trade) and the jus navigandi (the freedom to navigate)--where no judge can be found. (108) This vigilantism, encased in a pamphlet rhetorically devoted to making the seas free, depended necessarily on private policing, which even today complicates the idea of a global commons.
c. Thalassocracy and Mare Clausum
Assertions of dominium over the seas pre-dated Grotius' world by centuries. Thucydides and Herodotus, the greatest Greek historians, wrote of "thalassocracy," or the hegemonic control of the sea. (109) They wrote of the Minoan seaborne empire (c. 1600-1400 B.C.E.) as well as the Athenian rule over the Aegean (c. 500-400 B.C.E.). (110) The Romans, though reputed landlubbers, effectively asserted their mare nostrum (our sea) over the entire Mediterranean around 67 B.C.E. to protect grain shipments. (111) Rome's thalassocracy extended into the Atlantic and as far as North Sea shores of Western Europe. (112) The Hanseatic League of merchants forced its will on trading communities of the Baltic region from Bergen, Norway to Novgorod, Russia from around 1300-1600. (113) And an assortment of Republican city-states, importantly Monaco, Genoa, Pisa, and Florence, displayed pretentions of controlling the Tyrrhenian Sea; (114) the Genoese made additional and effective claims over the Ligurian Sea; and thirteenth century Venice would rise to become the thalassocracy of the Mediterranean world, (115) effectively controlling all passage on the Adriatic. (116) In 1563, the prominent Spanish jurist, Fernando Vazquez de Menchaca (1512-1569) attacked claims of dominion in the Mediterranean, and Queen Elizabeth of England (1533-1603), while overlooking her county's exclusionary practices, lectured the Spanish Ambassador that the ocean was as 'common to all as the use of sea and air',(117) but these arguments were not in the main. (118) Norwegian kings forbade foreign merchants from trading in Norwegian ports from the mid thirteenth century (a practice the English would adopt with passage of the Navigation Acts in 1651) and prohibited foreigners from trading in areas north of Bergen, (119) effectively claiming the Northern Sea (Mare Septentrionalis) as a mare clausum (closed sea). (120) England, Scotland, Holland, Norway and Denmark squabbled for centuries over fishing licenses in their waters; (121) if a private person could prevent others from fishing in a creek or nook of the sea through prescriptive use, argued Welwood, "by what reason should a private man ... be thus privileged and preferred to a prince[?]" (122) Indeed, England's kings James I and Charles I (who reigned from 1603-1625 and 1625-1649), became chief proponents of mare clausum. Like the similarly apportioned squadrons of the French fleet (led by ships titled "governors of the sea (praefectus maris)," England divided its fleet into three squadrons, each with a different charge, but all with the same aim of "keeping the narrow sea;" (123) the northern seas between Norway, the Faroes, Iceland, and Greenland became the scene of prolonged disputes at the beginning of the 17th century; (124) the Danes would make an historic claim to the Skagerrak Strait leading to the Baltic, (125) and indeed, over the entire North Sea to Iceland. (126) Sweden and Poland also laid claim to the Baltic, (127) and Sweden additionally regarded the Gulf of Bothnia as a mare clausum given that Finland had been part of the Swedish kingdom until 1809. (128) And history records claims over the North Sea, the Black Sea, the Persian Gulf, the Red Sea, (129) and the eastern Mediterranean. (130) By Grotius' time, this list of European enclosure-claims had extended to Asian waters, (131) but most certainly "there was hardly any part of the European seas free from proprietary claim ...," (132) The history of mare clausum casts a long shadow over Grotius' claim that the common use doctrine was based on the 'unanimous agreement' that the seas were exempt from ownership.
Mare Liberum details some of this history in the latter part of its formidable fifth chapter. It reads like an impressive testament to Grotius' command of geography and ancient seafaring. But he missed an important point. He proffered his review to counter 'absurd' Portuguese claims that they were the first navigators of the 'sea leading to the Indians'--"that no one had sailed over the aforesaid tracts of the Ocean before they themselves did so;" (133) that they had come to occupy (occupare) the seas and establish good title through navigation, prior use, and prescriptive right. Grotius retorted that the seas had always been navigated and there had never been a first voyager; (134) he reiterated his notion of private property and his conclusion that the seas are a res communis ("since it is as incapable of being seized as the air" (135)), holding that navigating the seas leaves no wake, no consequence, no diversion of use: "[A] ship sailing over the sea no more leaves behind itself a right than it leaves a permanent track." (136) But Grotius' history lesson, undertaken to refute title by navigation qua occupation, contained a brief narrative relating to dominium and imperium. He noted Rome's thalassocracy secured its reign and riches not through a prescriptive right of navigation or by claims of discovery (first voyage), but through the simple but effective means of stationing "companies of archers" on their ships to fend off pirates (137) and doubtless all other challengers.
In Mare Liberum, Grotius sought a rational, natural law justification for common use, deriving it from the jus naturale. But he scantily involved himself with the historical and customary practice that dramatically inclined toward the opposite conclusion. His insignificant treatment of customary practice in Mare Liberum has been linked to a complaint that he cited to history only if the material suited his thesis. (138) His most famous critic, John Selden (1584-1654), devoted several chapters of Mare Clausum (1635) 'to prove that the customs of many kingdoms and commonwealths allowed for dominion over the sea'. (139) Regarding Grotius' assertion that nature commanded the seas to be common, Welwood laconically responded: "And for what reason?" (140)
d. A Brash Response
Perhaps to preempt criticism of his common use thesis, Grotius brashly labeled as "completely irrational" any other modern usage of the term 'ownership' that deviated from his own construction. (141) Spanish and Portuguese assertions of prescriptive rights over their sea realms were "no less wildly erroneous than the opinions of those who are wont to embrace a very similar delusion in regard to the Genoese and the Venetians." (142) Elsewhere, however, he distinguished "vast maritime tracts" such as oceans from seas such as the Mediterranean and other 'mere gulfs', (143) which, he conceded, could be owned (citing specifically Venetian and Genoese powers as examples), because they were "the possessors of the shores bordering on the sea." (144) This curious distinction indicates that Mare Liberum specifically targeted Spanish and Portuguese maritime policies of exclusion, and did not treat as a serious controversy Venetian and Genoese exercise of dominium over the Adriatic and Ligurian Seas, (145) or many of the other seaward extensions of sovereign control.
e. The Political Context
He published his quarto volume anonymously, opting to "skulk' behind it in anticipation of doctrinal ripostes, (146) of which the arguments of Vazquez y Menchaca, Welwood, Freitas (c.1570-1633), Pereira (1575-1655), and the most noted Selden remain of great historical importance. (147) Political considerations also prompted a broader need for discretion: The Dutch Republic's burgeoning economic power had seriously damaged Hanseatic and English interests, but Spain and Portugal (a united monarchy betweenl580-1640) still possessed the 'economic and administrative power to curtail Dutch maritime expansion'. (148) Spanish embargoes against Dutch trade in the 'massive' Mediterranean market, (149) in force since 1598, had punishing effect. (150) Warring to the point of financial ruin brought the countries into delicate truce negotiations betweenl606-1609. Grotius' political mentor, Johan van Oldenbarnevelt (1547-1619), the Land's Advocate of Holland, (151) represented the Dutch Republic at the negotiating table, (152) and he doubtless sought to avoid any untimely association of his relationship to Grotius with the official Dutch position on navigation. "As Oldenbarnevelt foresaw, Spanish dissatisfaction with Mare Liberum would jeopardize a positive outcome of the negotiations on a peace or truce." (153) From the Iberian perspective, Spanish king, Phillip III (1598-1621) and his 'Great Favorite', the duke of Lerma (1553-1625) faced an "awesome dilemma:" (154) They could not allow the Dutch Republic's hegemonic rise in Asia to continue, but they did not have the economic or military tools to stop it. (155) The duke of Lerma entered into negotiations and offered Oldenbarnevelt independence for the Dutch Republic from the Spanish crown in exchange for an evacuation of settlements in Asia and the Americas and a cessation of all commercial activities in Asia. (156) The offer presented Oldenbarnevelt with his own dilemma: Acceptance of the Iberian offer would lift an embargo against Dutch access to the neighboring and desperately-desired Mediterranean market but surrender imperial pretensions to the East and West Indies. An uneasy truce--the Armistice of Antwerp, or, the so-called Twelve Years' Truce--was indeed negotiated and it did forestall war between the Spanish Crown and the Low Countries until 1621, but it "brought neither absolute recognition of Dutch independence nor Dutch concessions regarding Indian commerce." (157) It did, however, buy much needed time for the Dutch to develop their Asian colonial campaign. Jonathan I. Israel, called the truce "a key political watershed" with "immense implications for the whole of the world economy" due to the lifting of Spanish embargoes which allowed Dutch access to trade in the Mediterranean. (158)
At Oldenbarnevelt's insistence, Grotius postponed publication until after the truce had been signed in April 1609, (159) but he published the work with the famous House of Elzevier and his authorship quickly became an open secret. (160)
III. A LUMINOUS LEGACY, A TROUBLESOME TENDENCY
History's treatment of Grotius' common use argument, couched in terms of the freedom of navigation, has been kind, until recently. (161) And with good reason.
1. His Precocious Youth
He was a prodigy, brilliantly versed in letters and languages, (162) with a thirst for knowledge that ran in his family; (163) he was born a patrician and matriculated at the University of Leiden at age eleven; he was awarded a doctorate in laws from the University of Orleans at fifteen, (164) and was admitted to the bar in Holland the following year, immediately launching into a spectacular legal career. (165) At Oldenbarnevelt's suggestion, he accompanied Dutch diplomats to the French Court, where Henri IV proclaimed him the 'miracle of Holland', (166) and awarded him a gold medallion for his political poem, Pontifex Romanus. (167) At age eighteen, he was commissioned to write the history of the Dutch Revolt against Spain. (168) Already, he had edited the Martianus Capella Encyclopedia, which was published in 1599. (169) The dedication page features Jacques de Gheyn's engraving of him with the medallion in hand. (170) It was an artful reminder of his juvenilia, (171) which he was bent on making known to all, (172) even as a juvenile.
2. His Dazzling Effect on International Law and Relations
His literary genius and textured legal thinking extended beyond his precocious youth and contributed in additional ways to his luminous legacy as a polymath. In the legal field, he revolutionized juridical technique by introducing subjects in treatise form, stylistically and systematically advancing discourse away from the cloistered, lecture-orientation of his scholastic predecessors. (173) His use of authority was "dazzling" and eclectic, (174) although not always accurate or discriminating. (175) He innovated in conceptual ways: He made important contributions to subjective natural rights theory, (176) the early modern republican tradition, (177) and the doctrine of divided sovereignty; (178) he famously employed (but is erroneously credited with inventing (179)) the etiamsi daremus, the 'impious hypothesis' (180) that allowed thinkers to theorize as if God did not exist. This was a useful rhetorical technique in an age of the Thirty Years' War (1618-1648), where impiety provoked maximum punishment. (181) His bold, secular orientation was stated in Mare Liberum's preface: "What we here submit ... does not depend upon an interpretation of Holy Writ ...," (182) He was among the first to conceive of the seas in terms of geo-spatial uses; by doing so he in all but name introduced regime analysis to the study of world politics, (183) almost 400 years before the subject gained currency in international relations circles.
Often, international relations scholars reflexively address him as the putative "father of international law', (184) a sobriquet that spawned a punctilious debate on international law's paternity. (185) Important Dutch scholars, such as Cornelis van Vollenhoven, Willem J.M. van Eysinga, and Christian Meurer, viewed him with a "beaming sense of enthusiasm." (186) Others regard him with a Kuhnian sense of significance, (187) as a transformative developer of a new paradigm of constitutive rules and doctrines--crystallizing unusually quickly into a so-called "Grotian Moment." (188) In influential Anglophone circles, he became not so much the father of international law as the paterfamilias of a so-called 'Grotian Tradition' in international relations, (189) which, prosaically, sought to "endow international law with unprecedented dignity and authority;" (190) or, more concretely, strove to find a place for law in a dangerous time. (191)
Hersch Lauterpacht coined the term 'Grotian Tradition' in an eponymous essay marking the tercentenary of Grotius' death, but quixotically paused to wonder if "Grotius was really a Grotian'? (192) The phrase seems glib in an article Lauterpacht considered his most important contribution to the field. (193) Readers are left to discern which of the eleven features of his own tradition Grotius failed to embrace? (194) Lauterpacht's equivocation is awkward but in one sense justified; he unwittingly alit on a problem he did not explore fully: The Grotian tradition, at least in relation to the global commons thesis, harbored a hidden pelagic agenda.
3. His Hidden Agenda
This agenda casts doubt on Grotius' suggestively munificent notion of common use, undercuts the importance of Mare Liberum's writings on freedom of navigation, reveals Grotius to be as much a propagandist for Dutch colonial administration in the Malay Archipelago specifically and Asia generally as a humanist-advocate for peace, freedom, and the rule of law, and--ultimately--colors negatively ongoing prospects for state cooperation in the global commons.
His treatment of the seas calls into question the value of common use and reveals a state-centric 'tendency'--as opposed to a tradition (195)--that reframes our understanding of the 'tragedy of the commons.' Unlike the formulation of its ecological expositor, biologist Garrett Hardin, (196) who postulated a "remorseless" overworking of a common space by rational actors focused on individual gain, (197) the 'Grotian tendency' views the tragedy in terms of having one state's individual interests cut off by another, more capable state's ability to appropriate effectively that resource; the Grotian tendency has little to do with overuse, common use, or the concern that "freedom in a commons brings ruin to all;" (198) it has more to do with laying parochial claim to resources previously considered unattainable. Maritime history, viewed as world history, details the prevalence of this tendency to assert sovereign claims over resources once means become available and interests become dominant. And with all due respect to Professor Hardin, maritime nations before and after Grotius, never "responded automatically to the shibboleth of the 'freedom of the seas'." (199)
a. What Mare Liberum Is About
Neither, perhaps, did Grotius. He may have intentionally mistitled his great work, or at least he buried its true orientation in the subtitle, (200) given his admitted desire to skulk behind the implications of its message. Mare Liberum--as its subtitle suggests--reads at times more like a political tract advancing monopoly claims involving unimpeded Dutch access to Asian trade than a legal treatise about the freedom of the seas; it bears scantily any modern resemblance to the idea of free trade; rather, Grotius revealed himself as a major theorist of mercantilism. (201) He was, of course, writing well before economist David Ricardo (1772-1823) advanced economics' "beautiful proof" of comparative advantage in 1817, (202) which today provides much of the theoretical basis for trade. He also was writing during a time in which maritime powers could paradoxically equate free trade and open seas with an exclusive right of unimpeded access. Thus, free trade as a proto-economic idea was distinct from a right to trade, and Grotius' arguments advancing that right deserve an evaluation on their merits, apart from the complicating political practices of the time. But such an evaluation is complicated given Grotius' commingled ideological and political interests.
'Exclusivity' was precisely the complaint Grotius had launched against the Portuguese noblemen (Fidalgos) and their attempt to establish their colonial empire (the Estado da India). No prescriptive right or passage of time "avails to make a private property of the right to trade," wrote Grotius, because it is a "right which is incapable of assuming the character of private property." (203) Curiously, he amended that thought by adding that the lawful establishment of any such claim would require "coercion," "the absence of resistance," and no exceptions in terms of application (204)--criteria pursued with alacrity by the interests Grotius was hired to support. The result created something of a 'strange parallel', to borrow Victor Lieberman's phrase: (205) "Dutch practice towards Asian seaborne trade and towards European competitors proved not a whit more liberal than Portuguese custom, which in many respects was even copied by the [Dutch]." (206) Peter Borschberg noted the Dutch, through its corporate agent, the United Dutch East India Company (VOC: Verenigde Oostindische Compagnie), (207) "excluded all real and potential competitors, and bound princes in Asia to abide by their contracts with the Dutch--no matter how dubious the conditions might have been under which these contracts were conceded." (208) The VOC's military assault on the Asian 'trade diaspora' included demands for privileges from the Mughal Empire, attempts to exclude Gujarati traders from Southeast Asian ports, establishing genuine monopoly control over nutmeg and clove production of the Maluku, Banda, and Ambon islands, and restricting both intra-Asian and Asia-European trade through licenses (cartazes) in imitation of Portuguese practice. (209) Although Mare Liberum's full title linked 'freedom of the seas' to a 'right to trade', much of Grotius' emphasis was on 'freedom of navigation,' which actually "forms a subset to the overarching arguments on the freedom of access ...". (210) This insight from Borschberg, "stands in sharp contrast to past interpretations, insofar as these have placed the 'freedom of the seas'--and not the broader issues surrounding 'free trade'--at the forefront of scholarly attention." (211) In this light, Mare Liberum was an illiberal tract re-interpreted by the bedazzled keepers of his name, "moment' and 'tradition', as a grand liberal tract in support of modernity's twin pursuits of openness and common use of the seas; these pursuits support liberalism's ideas of navigation and commerce; but the Grotian tendency, apart from the man himself, saw them as avenues for allowing an emerging pelagic power to gain unimpeded access to newly accessible resources.
IV. THE CONTEXT REVISITED: ANOTHER VIEW OF SEVENTEENTH CENTURY HOLLAND
There is another view of the seas from Grotius' time. It helps to explain a skeptical view of Grotius' common use argument. By the earliest years of the seventeenth century, the view from Holland's shore was decidedly global; and Dutch economic interests were forging into new territory and drafting on the achievements of others: Renaissance discoverers a century before had carried Europeans across great distances and had turned oceans into highways. (212) In little more than a generation, Renaissance exploration outlined a world map not drastically different than our own atlases, (213) and provided "the sensationally rapid opening of the aperture through which Europeans looked at their world." (214) Norse, Celtic, Polynesian, Arab, Indian, and Chinese mariners most certainly accomplished astonishing and earlier open sea voyages of their own, (215) but indisputably the Renaissance explorers set the stage for worldwide exchanges of biota and culture (216) and created global connections that mark our modern and world-wide economic system.
We may leave to Renaissance historians and geographers the detailed task of determining how and why Europeans were able to "swagger across the globe," (217) unraveling so quickly the seemingly insurmountable secrets of open-sea navigation to create a new spatial order based on a jus publicum Europaeum. (218) A cursory review is helpful for understanding the Grotian 'tendency' of capable states to appropriate resources for themselves, and points toward certain 'causes' or historical tenets: A Christian worldview that conscripted Nature as a thing to be enjoyed, not endured (will); (219) shipwright advancements in out rigging and large ship design to better withstand punishing gales of high seas transit (technology); (220) the development of insurance and finance capital to offset risks of piracy and shipwreck (means); (221) the "twin impulses of cupidity and curiosity," (222) sparked by insatiable appetite for exotic imports (demand); and Europe's "peculiar" geographic station, which conferred wind advantages on Atlantic mariners unattainable elsewhere (discovery/fortuna): (223) Atlantic trade-winds drew ships south to the latitudes of the "roaring forties," which "girdle" the earth and lead to the West Australia current, making back-and-forth circumnavigation of the world possible. (224) It took centuries of sailing before Vasco da Gama "cracked this Atlantic wind code," (225) the discovery of which revolutionized world history by providing Europeans with the transmission belt to pursue global ambition (226)--and global war. (227)
1. The 'Roaring Forties '
It was the discovery of the 'roaring forties'--this 'resource' of untapped trade wind--that allowed European merchants direct access to eastern emporia, circumventing centuries of choke points along the silk routes from Asia. (228) Control of these routes built empires, none greater from their western trunk points than the Venetian Republic, which, after protracted conflict, defeated its Genoese competitor, (229) monopolized control over trade terminuses across the Levant and Black Sea, and brokered European access to silk routes until ceding control to the Ottomans, first at Constantinople in 1453, (230) and twenty-two years later at Caffa on the Black Sea. (231) The Ottomans, in turn, exacted their own tolls and choke holds, (232) but allowed the uneasy relationship with western merchants to continue because they "could not afford not to." (233) In search of means to outflank Islamic control of ports on the Mediterranean, as well as on the Red Sea, the Persian Gulf, and the Black Sea, (234) Spanish, Portuguese, English, and later Dutch mariners set sail northwest, northeast and south in search of any other strategic passage to access directly Asian sources of trade. (235)
Between the late fifteenth and early sixteenth century, a European world-economy developed along these maritime highways, (236) and if this economy had not yet congealed around the determinants of capitalism, (237) the profit motive everywhere was understood. (238) Fourteenth century Venetian merchants already had created the blueprint for a trading post empire (fondachi) in the Adriatic, which made Venice "a sort of universal warehouse of the world;" (239) mid-fifteenth century European quaysides offered a potpourri of goods imported from Benin to Borneo; (240) and by the early years of the seventeenth century, at the cusp of the age introducing the state system, another age was in the making: The rapidly advancing archipelagic age of Dutch colonial rule. By mid-century, roughly, Dutch corporate interests controlled twenty-three trading posts to Asia, ranging from the Cape of Good Hope to Japan. (241)
2. Dutch Commercial Interests and Technological Advantage
Grotius' early seventeenth century view of the sea reflected clearly the rapidly expanding commercial interests of the Dutch. By this time, the Dutch had established a world-wide trading presence, "one of the wonders of commercial history," (242) which would make them the greatest commercial power in seventeenth century Europe. (243) Holland's comparative advantage took hold on many fronts, including, importantly, shipbuilding with the introduction of the flat-bottomed "fluitschip" in the waning years of the sixteenth century. These vessels spectacularly reduced shipping costs and crew size and produced efficiencies not profitably exceeded until the introduction of iron hulls in the nineteenth century. (244) Until well into the seventeenth century, most ships engaged in oceanic shipping were Dutch. (245) By one calculation, the Dutch owned more tonnage than the rest of Atlantic Europe combined and the size of the Dutch merchant fleet probably exceeded the combined fleets of England, France, Spain, Portugal, and Germany. (246) It would grow to equal "roughly half of the world's total stock of seagoing ships," (247) making it, according to Fernand Braudel, the real instrument of Dutch greatness. (248)
A catalog of places where this fleet carried Dutchmen highlights "the strength, complexity, and wealth of their commercial structure," (249) as well as the burgeoning need for a legal protection of claim. They hunted whales off Spitsbergen, traded Norwegian timber for falcons and fish in Iceland and the Shetlands, fished herring off England to peddle to the Catholic South of Europe, stowed grain from Baltic trade and exchanged it for Italian marble, traded slaves in Curacao, smuggled Brazilian sugar to Amsterdam (which had twenty-five sugar refineries), trafficked Venezuelan salt, harvested West Indies tobacco; dealt coffee from Surat, Mocha, and Ceylon, paid tribute to Arabian and Persian brokers to access the silk trade, established entrepots in India, Ceylon, and Burma to secure cloths, cotton, lacquers, elephants' tusks, and precious stones in intra-Asian exchange for Japanese gold, silver, and vast supplies of copper. (250) And, they would monopolize the lucrative trade in Asian spice--pepper, cinnamon, clove, mace, nutmeg, ginger, and turmeric. "There was scarcely a region where they did not trade," (251) and like Venice before, Amsterdam became Europe's new commodity clearinghouse, only much larger and more complex. (252) And of all the world's riches, none would become more consistently important to the Dutch than spice. (253)
3. Grotius'Corporate Agenda
This was the commercial world that Grotius saw in the seventeenth century. And this was also the corporate world he was hired to protect. In 1603, the Dutch United East India Company (VOC), (254) the first ever trading company formed with permanent share capital--fast to become the most powerful and richest company in the world (indeed, the first great global corporation255)--hired the twenty-one year old to legitimize and defend its expanding interests in Asia. (256) By this time, Grotius was "renown throughout Europe for his prodigious erudition" (257) and his recruitment was akin to a "celebrity endorsement"--"as valuable to the [VOC] in this respect as by the persuasiveness of whatever legal arguments he could muster in support of its actions." (258)
The VOC had a curious, hybrid identity. It was created by the States-General of the United Provinces to consolidate six smaller Dutch commercial enterprises in Asia after Oldenbarnevelt became convinced those chaotic rivalries bid up the purchase price of spice in Asia and bid down the sale price in Dutch ports. (259) It was chartered as a private commercial corporation and granted an initial twenty-one year monopoly to trade east of the Cape of Good Hope or through the Straits of Magellan. Its funding came from investors, not taxpayers, but its directors swore an oath of allegiance to the States-General, though they often were beholden to neither. It had the capacity to enter into contracts and treaties alike; it could declare war or sue for peace; it was a trading company with a large fleet of merchant ships, but it also maintained giant warships, a huge private army, and fortifications spanning the Indian Ocean to the Malay Archipelago and Japan. There had never been anything like it, ever. It operated as a state-within-a-state, formed within the unique politico-commercial and federated structure of the United Provinces. (260) And in obvious ways, it appears more like a twenty-first century creation than a totem of the seventeenth century reformation. (261)
a. An Agency of Empire
Historian Philip D. Curtin called it "a syndicate for piracy," (262) but it could as easily double as an agency of empire in an increasingly belligerent relationship between the Dutch and Portuguese for control of the East Indies seas. (263) In the three short years since its incorporation the VOC managed to "transform into a full-scale strategic offensive." In 1605 alone, it conquered Amboina, Tidor, and Ternate, (the "legendary" Spice Islands) from the Portuguese, and solidified its colonial presence with fortifications and fixed garrisons. (264) The VOC and its private army would oust the Portuguese from Jakarta (1619), and from their bastion at Malacca (1641); it would advance toward India and control the coastal tracts of Ceylon (1654) and Cochin on the Indian peninsula (1660); it would oust the Portuguese from the Indian Ocean and the Pacific and it would put an end to the Estado da India, save for establishments in Goa, Macao, and Timor. (265) And all along the way, it would subdue and enter into trade agreements with the great sultanates of Indonesia and Malaya. (266)
b. The Taking of the Santa Catarina
Most immediately, the VOC sought Grotius' aid to defend its capture of the Portuguese carrack, Santa Catarina, off the coast of Singapore in 1603. (267) The proceeds, distributed following a ruling by a Dutch admiralty court, (268) instantaneously replenished a substantial portion of the paid-in capital for the company's central governing board of directors--the "Gentlemen XVII"--and their 1,800 shareholders. (269) The cargo yielded three and a half million Dutch guilders upon sale in Amsterdam, (270) and attracted "an incredible multitude" of gawkers and bidders from across Europe. (271) Booty included Ming porcelain, unrefined gold, Chinese silks, a royah chair set with gems, lacquer, curiosities, and gifts deemed worthy of offer to the kings of England and France. (272) But criticisms abounded, from the public, and importantly, from angry shareholders. The seizure set a dubious standard as "one of the best-known acts of freebooting committed during the Dutch dominance over Asian trade (273)--a period noted for "its injustice, perfidy,  cruelty" (274) and "mafia-like enforcers." (275)
But from the Dutch perspective, it was a justifiable reprisal for injuries suffered due to a Portuguese attack against a small Dutch fleet commanded by Jacob van Neck. In September 1601, following an unsuccessful attack against the Portuguese fortress at Tidore in the Moluccas that previous June, van Neck's fleet, blown off course, reconnoitered the port of Macao, where ships from a Portuguese garrison, through perfidious use of a white flag, (276) intercepted seventeen of his crew, converted them to Catholicism, and then executed them as pirates in response to the Tidore attack. (277) Letters detailing the event were seized from a Portuguese frigate during another act of Dutch privateering and fell into the hands of Jacob van Heemskerck, a commander of yet another Dutch fleet operating in Asian waters. He 'flew into a passion' upon reading of the fate of van Neek's men, and he made it his object to retaliate. Acting on a tip from agents of the prince of Johor, who had his own grievance against the Portuguese, Heemskerck and his seamen caught up with the Catarina at the mouth of the Johor River in the straits of Singapore, laid siege "all day long," killed seventy Portuguese, and ultimately released the remainder of the seven hundred and fifty aboard before taking the prize back to a Dutch harbor for condemnation proceedings. (278)
c. Trouble with Frisians and Mennonites; Common Use and No Competition
A rear-guard action sparked among discontented Dutch investors, principally Frisians and Mennonites. The Frisians had advanced the company 700,000 guilders but soon found out they had no voice in corporate decisions. (279) Controlling interests in the VOC vested in the hands of its board, the Gentlemen XVII, eight of whom came from the Holland 'Chamber' (Amsterdam) and four from the Zeeland 'Chamber'. (280) These principal directors controlled the decisions not to pay out dividends, (281) never to seek capital through additional stock offerings, (282) when to take out short-term loans, where to re-invest, and which voyages to undertake next. Their insular use of authority gave early modern expression to concerns about securities regulation, closely held corporations, fiduciary duty, and unjust enrichment. "Heated conflicts" broke out over investment policy, the lack of transparency of the Gentlemen XVII, and military expenditures of the corporation. (283) The prospect of the corporation's break-up into its constituent parts presented "a real danger." (284) Pamphleteers charged that the VOC was a government proxy, using shareholder capital to finance political objectives of the Dutch state rather than to maximize the financial interests of shareholders. (285) Their claims had a basis in fact: After only four years of operating, all six million guilders of start-up capital had been spent financing the corporation's military activities in Asia. (286)
Grotius entered into this fray unperturbed by shareholder concerns. Scholarly assessments of Mare Liberum and De Jure Praedae Commentarius (Commentary on the Law of Prize; 1604-1606), the grander, unpublished tract from which Mare Liberum was reworked, praised their literary qualities: They were a "triumph of juristic art" in which Grotius "abounds with patriotic fervor and zeal for his countrymen" in a struggle for liberty against oppression; where Grotius appears as a citizen of a republic fighting to secure its independence. (287) But these characterizations, reflecting the gilded rays of the "Grotian Tradition' advocates, block out complex implications brought up by Frisian concerns, and avoid ethical implications of pacifist Mennonite and other Anabaptist shareholders.
The Mennonites were appalled by the seizure of the Catarina, which to them smacked of an act of piracy or unjust war. Their position gained a measure of notoriety and public sympathy when some Mennonites deeded their VOC shares to the poor in protest. (288) Perhaps their numbers were not great enough to affect VOC policy, but one among them, Pieter Lijntgens, was influential in Amsterdam commercial circles and held the most VOC shares; his threat to dump them (289) created problems for management. Although "quietly prosperous and self-contained," the Mennonite protest was bold. They had a complicated status in the United Provinces. They were often "mocked by Calvinists and 'libertines' alike" for their sobriety and dress. Their active persecution ended in 1581, but they endured without full citizenship until 1672. (290)
Grotius knew of the Mennonites' poor treatment; later, in a famous address to the Amsterdam city council in April 1617, he chastised his own political party for 'conniving' against "Mennonite conventicles out of expediency rather than principle." (291) He would add to his reputation as a defender of religious toleration with his publication of De Veritate Religionis Christianae (1627), which solidified his key place in culture discussions advancing Dutch tolerance doctrine in the 1620s. (292) But his biblically-suffused yet mild writings on Christianity, lauded as intellectually crisp and free of denominational diatribe, "stressed the vital importance of freedom of conscience" but are nevertheless "remarkably reticent on freedom of practice and expression." (293) This observation would seem to characterize part of his decision to represent VOC interests in face of Mennonite complaints, which, combined with the Frisians' concerns, led to some pointed invectives in defense of the corporate objective. In De jure Praedae, he alluded to both factions, but most discernibly the Mennonites. He complained about their "blameworthy" (294) convictions; their "artless innocence," (295) their spread of "malicious falsehoods" and 'insufficient devotion to the commonwealth'; (296) their "superstitious self-restraint" (297) and "anxious and overnice avoidance of things;" (298) and their "betray[al of] their own possessions to the enemy because some conscientious scruple prevented them from fighting." (299) In the complex mix of sacred and profane interests, Edward Dumbauld concluded: "The growing wealth which was put into circulation as the result of Dutch maritime prowess doubtless proved more convincing to the thrifty populace than the conscientious scruple of the Mennonites against the use of armed force." (300)
But the Frisians and Mennonites were not finished. They responded in an astonishing resourceful fashion and in a way that would make Grotius' mentor, Oldenbarnevelt, "extremely alarmed." (301) After first discussing a plan to form a Frisian East India Company, an initiative Holland and Zeeland ably blocked, (302) they joined forces with other discontented merchants (303) and turned to the one man Oldenbarnevelt knew the Dutch Republic "could not afford to antagonize:" (304) Henri IV, king of France. Seen as the protector and greatest ally of the United Provinces, and implicitly aware of the advantages to France of a Franco-Dutch East India Company (305)--in view of Dutch, Portuguese, and English attempts to create the same (306)--Henri's "avid interest" in the proposal made for Oldenbarnevelt a huge political problem. (307) "But such was the determination to keep all Dutch investment in the East India trade within the confines of the VOC that it was decided to risk an outright rejection of the king's request." (308) Oldenbarnevelt told the king no such deal would be allowed to take place. (309) A particular kind of dominium over the seas began to develop on the home front as it would in Asia--Grotius' doctrine of freedom of the seas and its emphasis on common use were written against the backdrop of a state-sponsored and enforced 'no-compete' clause--the signature piece of mare clausum.
4. Self Defense and Mare Liberum
In view of the shareholder row and the concern that Oldenbarnevelt might concede the VOC's Asian agenda at the armistice table, (310) the Gentlemen XVII petitioned Grotius for help. Grotius legitimized the seizure of the Santa Catarina in the famous twelfth chapter of his tract, De Jure Praedae Commentarius. He reworked this chapter and published it separately as Mare Liberum. (311)
Grotius crafted a defense, which not only strategically couched the conflict in terms of the secondary concern for freedom of navigation, but also forwarded a natural rights argument that justified the private recourse to war as a means of self-defense and for the protection of rights "common to all." (312) He argued the taking of spoils--absent the presence of a third party adjudicator--was proper recompense for injuries suffered to an ally of the Dutch, the sultan of Johor, although there is ample evidence the sultan never staked a claim to the Catarina and could not have assigned a good cause of action to the VOC even according to Grotius' theory. (313) His development of a divided sovereignty doctrine allowed a sovereign to assign a public right of war, in terms of self-defense (alternatively described as a right to punish (314)), to a private, corporate entity on the basis of a subjective natural right of dominium. (315) "The crucial element in Grotius' legal thought on divisible sovereignty, then, is that the law of nations was not exclusively a law for nations, but also included rights and duties for individuals and private companies." (316) From this example of the taking of the Catarina, one might come to understand why Hersch Lauterpacht detailed eleven main features (317) of the Grotian Tradition--so many of them are relevant to this case at hand--but scantily any of them are relevant to the praiseworthy and liberal legacies intended by Sir Hersch's gilded portrait of Grotius. And to justify an act of privateering in which "a private individual could punish transgressors of the natural law and act as judge and executioner in his own cause," (318) could not have any other consequence than problematizing Grotius' notion of common use while undercutting the romantic declaration of the "progressive triumph of Grotius' thesis of mare liberum and its concomitant prohibition on claims of territorial sovereignty." (319)
5. Requiem for Mare Liberum
Grotius' involvement in law of the sea matters was not the product of his deliberate design to craft an argument about the global commons. Rather, he backed into the subject while advancing the parochial interest of a state-sponsored corporation in pursuit of raison d'etat. C. G. Roelofsen argues the epoch-making qualities ascribed to Mare Liberum are "the result of an accident." (320) Indeed, classifying the seas as a common use and vindicating a corporation's violent act of privateering by highlighting Portuguese interferences with the natural right to trade and travel, only to justify an appropriation of that same space by the superceding power, seem disturbingly precedential if not indicative of the Grotian tendency of capable states to commandeer resources in increasingly diminishing areas described as the global commons.
There is irony here. Grotius' expedient legal argument on behalf of the VOC caught up with him at the Anglo-Dutch colonial conferences of 1613-1615. Sent to England to defend the Dutch maritime monopoly policy of excluding competitors from trade in the Spice Islands and elsewhere, "the Dutch were somewhat embarrassed by having Grotius, their foremost champion of the freedom of the seas, constantly quoted against them." (321) Embarrassed perhaps, but the significance of Grotius' earlier view presumably indicated there was more to it than political expediency. Nevertheless, according to historian, C.R. Boxer, the Dutch, in the final analysis, "relied less on their rather dubious legal arguments than on their practical preference for:
The good old rule, the simple plan, That they should take who have the power, And they should keep who can" (322)
Recent scholarly readings of Mare Liberum pick up on Roelofsen's "uncomfortable thought." (323) Although received in the canon of international legal literature as a masterwork of independent scholarship and the basis for the principle of freedom of navigation, and indeed, proto-liberal thinking relating to natural rights theory, these scholars have highlighted the complexities of Mare Liberum's legacy: Peter Borschberg calls it a propaganda piece, not even up to the standard of a legal brief; (324) it was crafted to influence the Amsterdam Admiralty Court's verdict on the capture and to persuade the Dutch EStates-General to assist the VOC; (325) Martine Van Ittersum labels Grotius an "unyielding VOC apologist," (326) who readily collated Company-supplied "transcripts, attestations, letters, maps and books" (327) and the personal account of the VOC's admiral who took the Catarina as prize (328) into a legal doctrine justifying a private right to war. More astonishing is the fact that Grotius accomplished this aim by configuring his legal argument in terms of common use, just war, and, above all else, freedom of the seas--concepts 'more honored in the breach than the observance'. (329) Van Ittersum also highlights Grotius' skills of "forensic oratory," turning Mare Liberum into a villainous encomium of Iberian intentions to conquer the Low Countries akin to Spanish subjugation of the indigenous peoples of the Americas. (330) More thought should be directed toward the self-determination implications of Grotius' Mare Liberum. His embedded concept of divided sovereignty, which contributed to corporate and colonial rule over indigenous populations, elevated the doctrine of pacta sunt servanda (the good faith performance of obligations) to a position of supreme primacy (which, incidentally, Sir Hersch lauded (331)). But he treated corporate contracts of adhesion in Asia no differently than the Spanish administered the Requerimiento (332) in the colonization of the Americas, and these coerced agreements had a retrograde significance and relationship to the right of self-determination.
Others have noted Grotius rhetorical tactic of quoting and often misquoting Iberian doctrinal authorities for the sake of discrediting the Iberian positions in their own tongues. Karl Zemanek criticized Grotius' apologists for presenting his work as a successful application of the jus naturale, ostensibly hewn from references to classical, biblical, patristic, and theological authority as "a sudden inspiration of recta ratio (right reason) in the opinio juris of states," rather than as "the success of an economic doctrine which determined the new foreign policy." (333) Grotius' Free Sea thesis was meant to substantiate the claim that no nation had exclusive rights to the common seas--to navigation and trade through discovery, occupation, prescription or donation by the popebut to prove it, he had to force a dichotomy between the Scylla of lawful privateering (which he admitted was opposed by "a considerable number" of his own people334) and the Charybdis of piracy. And has been pointed out: "By naming each other 'pirates', the Portuguese as well as the Dutch would both have agreed to label the native resistance against their conquest as 'piracy' too." (335)
V. THE GROTIAN TENDENCY ON DISPLAY
It is ironic that this concept of the global commons, which arises across such a wide spectrum of international law topics, is under assiduous attack in the seaborne realm that gave rise to its early modern expression. Since the end of WWII, the world has witnessed a series of creeping appropriations of pelagic space formerly considered to be part of a global commons, or at least beyond the scope of national jurisdiction. These enclosures are every bit as significant and expansive as the fifteenth century attempt to divide the world--except they have been much more effective.
A sublime indeterminacy thesis accompanies Grotius' idea of the global commons: On one level, the term serves as a stable rubric for international cooperation and mutual benefit, but only as long as capable states remain uninterested in or incapable of exercising effective control over a resource. On another level, because states tend to lay claim to geo-spatial areas they are determined to control, the significance of the global commons dilutes and become a rhetorical or political trope more than a term of legal art and significance. Nowhere has the receding importance of the global commons or the lingering significance of the Grotian tendency been more pronounced than in the modern history of the seas. And as D.P. O'Connell has noted, it is easy to understand why: Proximity to the sea assigns to coastal states "primordial rights" over its resources. (336)
Perhaps a 'territorial temptation' is at work here. Scholars claim that "the law of the land and the law of the sea have developed in very different ways," (337) that the regimes for establishing sovereignty rights to land and sea are "fundamentally different," (338) with title to land established primarily through physical appropriation by powerful states and title to the seas remaining res communis due to sheer practical difficulties in establishing dominium (339) Thus, the history of the international law of the land has led to the progressive triumph of the territorial temptation and the history of the international law of the sea has led to the progressive triumph/myth of Grotius' thesis of mare liberum. (340) The more interesting historical point for consideration is the way in which the territorial temptation supports the pelagic adaptation of that most terrestrial and presumptive form of dominium: Uti possidetis juris (as you possess, so you may possess). (341)
1. The Twentieth Century Territorialization of the Global Commons
Prompted by the discovery of offshore oil and gas deposits, Harry S. Truman, President the United States--on behalf of the world's then and current naval superpower--issued two proclamations -the so-called 1945 Truman Proclamations: (342) The first proclamation asserted jurisdiction over the subsoil and seabed of the continental shelf while preserving the high seas character of the historically defined right of freedom of navigation; the second claimed a right of the United States to regulate coastal fisheries, which presaged a coming coastal state interest over the superjacent water column of the continental shelf to control and harvest the living resources of the sea. The proclamations amounted to stunning encroachments into the seas, as related to coastal states' creeping jurisdiction over the seabed, subsoil, and later, the superjacent water column of the continental shelf. The proclamations signified a major step toward the end of the classical law of the sea (343) and presaged a coming 'land grab' over the mineral and living resources of the sea.
The United States' justification for these proclamations "sprang from the two-fold claim that the continental shelf was naturally appurtenant to the landmass of the coastal state and that the most effective measures of utilization and conservation were necessarily contingent on cooperation and protection from the shore." (344) Both justifications suited well the interests of coastal states and provided them with an easy invitation from the leading thalassocracy to extend control over resources of the sea. Merely thirteen years after introduction, the Truman Proclamations and their appropriative design became the cornerstone of continental shelf law, (345) which was one of four weighty conventions and an optional protocol on dispute settlement (346) produced at the First United Nations Conference on the Law of the Sea (1958). (347) This conference, held in Geneva, marked the successful launch of the twentieth century movement to codify the law of the sea, (348) and to enclose major portions of it, too. The appropriative design was succinctly stated by a member of the International Law Commission: The Continental Shelf Convention "had been drafted in light of the eventual exploitation of the natural resources of the seabed." (349) While establishing "sovereign rights" over the continental shelf, but not sovereignty itself, the convention did not interfere with modern applications of the/us mercandi and the jus navagandi.
Since that time, the appropriative design of capable states over the living and mineral resources of the sea have been on display. (350) Although essentially somnambulant for three hundred and fifty years, (351) the doctrine of the territorial sea, reawakened in this same post war period as the Truman Proclamations, resulting in coastal state extensions of sovereign rights from three to twelve nautical miles, (352) along with the creation of the contiguous zone, (353) which extended coastal state police powers an additional twelve nautical miles seaward. (354) The Geneva Conventions forwarded an ab initio doctrine, (355) which based acquisition to pelagic space on geographic proximity rather than on the military muscle via the terrestrial concept of effective or physical occupation. (356) Acceptance of this doctrine was done "without hesitation" to prevent a "rush and grab for sea-bed resources being undertaken by a few [powerful] states on the basis of the Grotian dogma of 'freedom of the sea'." (357) And a sense of attitudinal change developed. The International Court of Justice validated the ab initio doctrine, (358) and some scholars argued the legal regime based on geographical proximity rather than prior occupation expanded the rule of law and promoted a sense of attitudinal change by forestalling the interests of Western colonial powers that "were poised at that very moment to claim and exploit vast ocean areas," noting that "by the time that developing nations obtained comparable technological capability it would have been much too late." (359)
In retrospect, the ab initio doctrine did not appear to be too far removed from the concept of effective occupation. In direct response to the Truman Proclamations, Latin American countries forwarded claims of a Patrimonial Sea or Epicontinental Sea, which asserted prescriptive or sovereign rights over a 200 nautical mile economic zone measured from the baseline of the territorial sea. (360) Over time, major maritime powers came to embrace a reformulated version of these concepts, which contributed directly to "the most fundamental change" (361) of UNCLOS--the establishment of the exclusive economic zone (EEZ). (362) The EEZ established sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, both living and non-living, as well as the sea-bed and its subsoil out to 200 nautical miles from shore (363) It "extended the same sort of protection to interests of coastal states in the living resources of the waters over the continental shelf ... as the continental shelf regime previously had extended only to coastal state interests in the resources on or beneath the ocean floor." (364) Embracing about one-third of the marine environment and encasing all of the "important seas and gulfs of the world," (365) it was an enclosure every bit as significant as the Treaty of Tordesillas. (366)
But UNCLOS was crafted as a package deal: (367) The agreement reached to delimit the territorial sea, to establish the EEZ, and to afford maritime powers protections for military and national security interests, such as unimpeded transit through straits, (368) was offered in exchange for economic concessions to developing and land-locked countries. These developing countries, numerically powerful in the United Nations following post-war decolonization, and aligned through a host of organizations promoting a 'rebalancing' of the extant international economic order, (369) also expected the new law of the sea to manage the remaining global commons of the high seas and deep seabed according to the principle of distributive justice, with the principle of the 'Common Heritage of Mankind' (370) as the guiding light.
It was not to be. In an obvious display of power politics, reminiscent of Grotius' parochial defense of seventeenth century VOC interests, the United States and other powers reversed their long-standing negotiating positions, refused to sign the treaty, accepted the vast majority of the non-seabed provisions of the Convention as existing customary law, and on the basis of customary, not conventional law, proclaimed a 200 nautical mile EEZ. (371) The United States (and the former Soviet Union) also made explicitly clear that any extension of the territorial sea would not be accommodated without acceptance of thalassocratic interests relating to military transit through international straits, a demand that gave birth to the doctrine of transit passage. (372)
2. The Twenty-First Century Continuation
Long before the EEZ became established law, Wolfgang Friedmann, Georges Scelle, Robert Jennings, Cecil Hurst, Hersch Lauterpacht, and other twentieth century international legal scholars, began writing of the radical postwar reformulation of the classical law of the sea, noting the expanding, almost inexorable movement toward closed seas. (373) Hurst interpreted the movement as sovereignty by another name; (374) Bernard H. Oxman noted more recently this "territorial temptation thrust seaward with a speed and geographic scope that would be the envy of the most ambitious conquerors in human history," (375) giving rise to the prospect that the classical law of the sea had not ever radically transformed. Several other resource scrambles are underway at the beginning of the twenty-first century, one in the "High Arctic," (376) the other spanning the globe and reaching into the sea, at the outer reaches of the continental shelf. Together, they amount to "one of the biggest territorial grabs in history" (377) and continue the assault on remaining unsecured space.
a. The High Arctic
Prompted by recent and dramatic Artie ice melt during summer months, (378) and scientific estimates that the Arctic Circle holds approximately thirteen percent of the world's recoverable oil and thirty percent of the world's undiscovered gas deposits, as well as vast quantities of mineral resources, (379) states adjacent to the Arctic are laying claim to previously inaccessible resources. Since 2001, seventy-three continental shelf extension claims, some of them included in the current Arctic enclosure bid, have been presented to the CLCS, (380) which was established by UNCLOS to receive information and make recommendations to coastal states on the establishment of the outer limits of their continental shelves. (381) None of these claims, proffered by rich and poor countries alike, are motivated by a protection of or interest in the global commons machinery set up by UNCLOS' International Seabed Authority machinery. (382) This machinery had to be modified extensively by the 1994 New York Amendments to prevent outright developed world rejection of the once proud Common Heritage of Mankind concept. (383) Moreover, "the 1994 Agreement changed the nature of the [International Seabed Authority] into a market-based concept fully compatible with private economic activity." (384) Never embraced completely, the Common Heritage principle now may be undergoing a de facto deconstruction given the expanding interest of coastal states, much like its perceived undoing in the management of the geosynchronous orbit and international space commons. (385) Every incremental seaward extension of the continental shelf amounts to a de facto reduction of "deep seabed," which was to be regulated by UNCLOS itself. (386) The result, according to Scott Shackelford, is that the "world's largest 'commons' is being, at least in part nationalized" (387) along the lines suggested almost 400 years ago by John Selden, and objected to by Grotius, except when it served his interests.
i. Continental Shelf Extension Claims
Continental shelf extension claims are based on an estimated $1.2 trillion in resources contained in what formerly was regarded as a common area. (388) The extension of sovereign rights in the EEZ out to 200 nautical miles did not satiate the territorial temptation for control over more offshore resources, notwithstanding evidence most proven resources are located within the EEZs of Arctic States. (389) Where the EEZ and the continental shelf overlap, up to a distance of 200 nautical miles, the two sets of sovereign rights overlap. But under Article 76 of UNCLOS, the outer limits of the continental shelf involve yet another kind of delimitation to determine where the high seas actually begin. This determination is not straightforward; (390) rather, it involves "wild card" assessments (391) of exceptional complexity and expense, involving technical measurements, legal terms of art, problems of administrative law, complicating factors of confidentiality, and reliance on bathymetrie and seismic data derived from ice-covered areas, gathered and submitted by the petitioning coastal state (392) to commissioners serving in their private capacities. (393) According to Timo Koivurova, "caution is needed" when determining if Arctic coastal states are behaving here in line with the law of the sea. (394) While UNCLOS forwards the interests of the coastal states with respect to outer continental shelf claims, the rules are inherently flexible, making it 'irrational for Arctic coastal states not to make use of such rules'. (395) Koivurova points out the type of sovereign rights coastal states enjoy over outer continental shelf claims relate to rights and obligations involving natural resource (mainly hydrocarbon) exploration and exploitation, rather than territorial rights. (396) But he also cautions that the distinction is nuanced and open to the military and policy arguments of "various actors that refer to international law," (397) moreso because "most of the difficult issues remain unresolved." (398)
In principle, each delimitation of the outer limits of the continental shelf is subject to four possible outcomes (399) involving a mix of five criteria. (400) Moreover, "a plethora of ambiguities" (401) creates uncertainty as to whether the coastal state, the CLCS or some other third party dispute settlement mechanism makes the final determination as to outer limit. (402) Current claims exploit these ambiguities and portend to shrink the oceanic commons "by more than 40 percent," effectively redefining the seabed as a resource of national, not supranational, control. (403)
Such claims have an especially profound and diminishing effect on the global commons in the Arctic Ocean. This ocean, the world's smallest, consists almost entirely of continental shelf, meaning most of the Arctic basin seabed could fall under the national jurisdiction of one of the five adjacent Arctic States (Canada, the United States, Russia, Norway, and Denmark (via its territory, Greenland)). (404) Russia, alone, claims almost one-half the Arctic area based on the 1240 mile underwater Lomonosov Ridge as an extension of its Siberian continental margin. (405) This claim overlaps with a Canadian claim to part of the Lomonosov Ridge, and a likely Danish claim. (406) The Canadian claim, in turn, overlaps with a projected U.S. claim in the Beaufort Sea; (407) the United States, which is not a party to the Convention, nevertheless initiated its own data-gathering study, which projects an extended continental shelf of more than 600 nautical miles from the north coast of Alaska (408)--a distance of keen interest to oil companies and Alaska politicians. (409)
ii. The Northern Sea Route and the Northwest Passage
Receding Arctic ice also makes possible increased commercial shipping on two trans-Arctic sea routes: the Northern Sea Route, part of the Northeast Passage, which traverses the top of Russia connecting Europe and Asian, and the Northwest Passage, which connects the Atlantic and Pacific Oceans through the ice pack of Canada's northern archipelago.
Already, Canada claims the Northwest Passage as part of its inland waters, which is tantamount to a non-negotiable claim of full sovereignty over the area; (410) the United States and European Union dispute that claim and assert the passage is an international strait between two high seas. (411) The legal distinction fundamentally affects the right to regulate shipping, marine pollution, and military transit. (412) Additionally, Denmark and Canada dispute control over the Hans Island, a desolate rock between Greenland and Canada's Ellesmere Island, the ownership of which some analysts believe could affect sea lanes leading to the Northwest Passage and continental shelf claims over natural resources, should the region prove economically viable. (413)
Russia has a 10,000 mile Arctic border, ranging from Murmansk to Provideniya, (414) 2,600 nautical miles of which make up the Northern Sea Route. (415) Foreign barge traffic on this route did not open until 2009; it doubled in 2011 to 34 barges, and notched up to 46 in 2012; in 2013, it has ballooned to 467 vessels, with sixteen making the complete transit voyage. (416) On 8 August 2013, the Yong Sheng, a 19,000 ton Chinese cargo vessel laden with heavy equipment and steel set sail from the northeast port city of Dalian for Rotterdam, marking the maiden voyage across the Northern Sea Route between the world's largest exporting nation and its largest importer, Europe, cutting 2,400 nautical miles off the traditional route round India and through the Suez Canal, saving hundreds of thousands of dollars in transit costs, shortening transit time by 15 days, (417) outflanking pirates in the Southeast Asian seas and off the Horn of Africa, distancing its cargo from political machinations in key choke point areas, and potentially changing the course of maritime trade every bit as much as da Gama did when he cracked the Atlantic wind code in 1498.
To accommodate this increasing traffic, Russia has budgeted $1.2 billion to develop ice-resistant tankers and is expanding its considerable fleet of icebreakers, some nuclear powered. (418) Like the Dutch and Venetians before, Russia has invested in an extended series of Arctic trading posts, (419) and has been investing in its shore-based Siberian infrastructure since Stalin's 1932 announcement of the grand strategy to make the Soviet Arctic a symbol of national pride. (420) And like maritime nations of the seventeenth century, Russia's Northern Sea Route Administration has issued licenses, akin to Iberian cartazes, to numerous countries that seek transit across these northern waters, maintaining, like the European monarchs of the late-scholastic and early modern age, and over the objections of competing thalassocratic interests, (421) that the route traverses a mare clausum because the Northern Sea Route forms part of Russia's internal waters. (422)
The Ilulissat Declaration of May 2008, (423) issued by five countries rimming the Arctic Ocean (Canada, Denmark (via Greenland), Russia, Norway and the United States), promised cooperation rather than competition in the area of the high Arctic. The Barents Euro-Arctic Council, the Barents Regional Council, and the Northern Forum, comprise three other regional 'soft-law' governance systems that seek expanded cross-border cooperation. (424) The creation of an Arctic Council in 1996 underscores this commitment as well. (425) The Council has been lauded for its work in common areas, (426) and has contributed directly to two recent binding international agreements. (427) But the coastal state signatories (the Arctic (5)) made the claim that by virtue of their proximity to the Arctic Ocean, they were in the unique position to address unfolding possibilities and challenges, even more than Finland, Sweden, and Iceland, the other members of the eight-country Arctic Council not fronting the Arctic Ocean. (428) This claim indicates a "lack of confidence in and unity among' the Arctic Council members. (429) It suggests a club has formed within the Arctic Council, and that the Arctic 5 has become an informal 'niche governance' association based on coastal state authority above the Arctic Circle. Classified diplomatic cables, summarizing discussions among some Arctic 5 members, support this view. Leaked as part of the Wikileaks Cablegate scandal in 2010-2011, they reveal concerns about the Arctic Council's "unwieldy" political nature, the need for "a smaller group," and the need to make the Arctic Council "more political, in the right sense of the word." (430) Vague perhaps, but remarks attributed to Denmark's then Foreign Minister, Per Stig Moller provided coloration: The more closely-knit Arctic (5) format was necessary "to determine ... extended continental shelves and settle maritime disputes." (431) Pavel Baev also has noted Russia's preference for resolving Arctic problems within the narrower group of littoral states," which serves as an expedient for coordinated and expanded continental shelf claims. (432) With the most capable, and in this case proximate, states suggesting that no new comprehensive regime would be needed to manage the Arctic, it remains to be seen whether the guiding principle will take the form of mare liberum's 'common use' resurgent or uti possidetis juris recrudescent. Those who support the former idea, as is indicated by the movement to establish a democratic Arctic Circle Assembly, (433) have good reason to expect the latter.
What also remains to be seen is whether these developments act as a bellwether for the deconstruction of the common use idea in other regions of a real or imagined transnational commons, (434) including the 'problem of Antarctica', (435) where a moratorium holds in abeyance sovereign claims for the duration of the Antarctic Treaty; (436) in the East China and South China Seas, where competing claims of sovereignty clash with the ascending military and economic might of China and its emerging thalassocratic intentions; (437) and, outer space, the last bastion of the Common Heritage idea, where once far-flung discussions of human colonization and resource extraction now take the form of earthly appropriations planning at the dawn of the age of outer space development. (438)
Any tendency to declare the emergence of (yet another) epochal Grotian Moment, where global interests and common values secure resources for common use and humanity's benefit, must deal with the historical Grotian tendency--artfully nuanced by the master himself--of capable states acting individually or in concert to appropriate emerging resources to the exclusion of other states and to the detriment of a global common use doctrine. The world is not witnessing a paradigm shift in the High Arctic; it is witnessing iterations of a state-sponsored possessory interest to territorialize geo-spatial resources, iterations amply demonstrated throughout history and especially in the ambit of the law of the sea. As but one example, much scholarly attention currently focuses on the delimitation work of the overburdened LCSC, which must tediously review complicated scientific data provided by the same interested states that seek continental shelf extensions. The Commission itself is not an official United Nations agency; it lacks true legal personality in itself and in relation to the dispute settlement articles in UNCLOS Part XV. Doubt already abounds as to its ability to render effective recommendations, making its work product a likely subject for future discussions of the continuing uncertainty in the High Arctic (involving, possibly more informally than formally, the problem of non liquet in international law (439)) rather than of international law's progressive development.
Lost in much of the discussion about competitive land grabs under the sea, or on top of the world, or the coming communal use questions involving Antarctica and outer space, is consideration of the nature of these races, extant or projected. Is there a 'Race to the Pole' or a debate about the distributional consequences of resource accumulation through continental shelf extensions in areas originally deemed set-asides for humanity's common use, or have the capable participants sped ahead of the instrumentalities of international law to secure their own faits accomplis over pelagic space? If pelagic space is subject to such appropriation, will outer space development be different? A true epochal shift in state behavior would record a shift away from the Grotian tendency, but any epochal shift in state behavior is moderated not by the penchant to share resources but to divide them. The geo-spatial races currently underway do not appear to be open races, in the conventional sense, but rather, invitational races, with place-markers extended to those proximate states most capable of exercising their territorial tendency to alienate and enclose. Though they pledge cooperation, they compete; though they compete, they unite to exclude all others; when they see no need to unite, they act unilaterally. In concert, they render indeterminate the future interests of the global commons.
Grotius' powerful idea of mare liberum remains multi-textured, as does his idea of common use. The history of international law teaches that capable states, through cupidity and curiosity, through emergent technology and change, through innovation, derring-do, and good fortune, continue to validate the historical tendency to territorialize common space when means and interests allow, leaving international legal scholars to wonder in their wake, whatever did Grotius mean by, and whatever remains of, his common use doctrine, introduced in a small pamphlet on the Free Sea many years ago?
(1.) Hugo Grotius, Mare Liberum [The Free Sea] 1609-2009, translated by Robert Feenstra (Leiden: Brill Academic Publishers, 2009) at 81 [Mare Liberum].
(2.) Ibid at 63.
(3.) Ibid at 81.
(4.) Ibid at 25 (use in trade); ibid at 63 (use in navigation and fishing).
(5.) Ibid at 63 [emphasis added],
(6.) Ibid at 9.
(7.) Ibid at 15.
(9.) Ibid (Grotius asserts that as "the sea is an element common to all ... no one could possibly take possession of it" at 63).
(10.) Jeroen Vervliet, "General Introduction", in Grotius, Mare Liberum, supra note 1 at xv [Vervliet],
(11.) Christian Gellinek, Hugo Grotius (Boston: Twayne Publishers, 1983) at 147 [Gellinek].
(12.) See John Miller, "Hugo Grotius" (March 21 2014), online: Stanford Encyclopedia of Philosophy <http://plato.stanford.edu> (conceding that history may have favored Grotius and his view that the seas are open to all at para 4); see Anthony D'Amato & John Lawrence Hargrove, "Environment and the Law of the Sea: A Report of the Working Group on Ocean Environment of the American Society of International Law" (1974) 5 Stud. Transnatl Legal Pol'y (noting "[historically it was of course the Grotian position [freedom of the seas] that prevailed ..." at 15); see Alison Reppy, "The Grotian Doctrine of the Freedom of the Seas Reappraised" (1950) 19:3 Fordham L. Rev. 243, (declaring Grotius the victor in doctrinal battle of freedom of the seas versus closed seas at 264) [Reppy],
(13.) David Armitage, "Introduction" in Hugo Grotius The Free Sea, ed, David Armitrage (Indianapolis: Liberty Fund, 2004) at xi. The book was placed on the list of forbidden works in 1610. Ibid at xviii, as was much of the author's oeuvre. See Gregorii XVI, ed, Pontificus Maximi, Index Librorum Prohibitorum sanctissimi domini nostril (Neapoli: 1853) at 188-189.
(14.) "Russia plants flag under North Pole" BBC News (2 August 2007), online: BBC News http:// news.bbc.co.uk/2/hi/europe/6927395.stm.
(15.) Canadian Foreign Minister, Peter MacKay, was quoted as saying: "This isn't the fifteenth century; you can't go around the world and just plant flags and say 'We're claiming this territory'." Ibid.
(16.) Jamie Do ward, Robin McKie & Tom Parfitt, "Russia leads race for North Pole oil" The Guardian (28 July 2007), online: The Guardian Online <http://www.theguardian.com/ world/2007/Jul/29/russia.oil>; Doug Struck, "Russia's Deep-Sea Flag-Planting at North Pole Strikes a Chill in Canada" The Washington Post, (7 August 2007), online: <http://www. washingtonpost.com/wp-dyn/content/article/2007/08/06/AR2007080601369.html>; Owen Matthews, "The coldest war: Russia and U.S. face off over Arctic resources" The Mail Online (19 May 2009), <http://www.dailymail.co.uk/news/arficle-1184291/The-coldest-war-Russia-U-S-faceArctic-resources.html>.
(17.) See Pavel K Baev, "Sovereignty is the key to Russia's Arctic Policy"(2013) 37:4 Strategic Analysis 489.
(18.) United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397 [UNCLOS], available at <http://www.un.org/depts/los/convention_agreements/convention_overview_convention. htm> pt XI s 1-3.
(20.) U.N. Treaty Collection, Multilateral Treaties Deposited with the Secretary-General, Status of Treaties, United Nations Convention on the Law of the Sea, Chapter XXI, online: <http://treaties. un.org/doc/Publication/MTDSG/Volume%20n/Chapter%20XXI/XXI-6.en.pdf>.
(21.) UNCLOS, supra note 18, pt VI, art 7, para 1.
(22.) See [section]2.2, Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf (Test of appurtenance), Commission on the Limits of the Continental Shelf, Distr. General, CLCS/11,12 May 1999, online: <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/ N99/171/C)8/IMG/N9917108.pdf?OpenElement>.
(23.) UNCLOS, supra note 18, pt VI, art 76, paras 1-7. See Elizabeth Riddell-Dixon, Canada and Arctic Politics: The Continental Shelf Extension (2008) 39:4 Ocean Dev & Int'l L 343 at 345. For a detailed discussion of the test of appurtenance and its relation to UNCLOS article 76 (1) and (4), see Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment, 14 March 2012, No. 16, International Tribunal for the for the Law of the Sea, paras. 412-460 passim.
(24.) UNCLOS, supra note 18, Annex H, art 4. The provision states: Where a coastal State intends to establish, in accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State. The coastal State shall at the same time give the names of any Commission members who have provided it with scientific and technical advice. Under a separate provision, re-filings are admissible beyond the ten year period. Id. annex II, art. 8 ("In the case of disagreement by the coastal State with the recommendations of the Commission, the coastal State shall, within a reasonable time, make a revised or new submission to the Commission.").
(25.) Marta Carlsson & Niklas Granholm, "Russia and the Arctic: Analysis and Discussion of Russian Strategies" Swedish Defense Research Agency (March 2013) at 18, online: <http://www.foi. se/ReportFiles/foir_3596.pdf>. The Russian Federation was in fact the first country to submit a claim. For a summary of submissions, see Tina Schoolmeester & Elaine Baker, eds, Continental Shelf: The Last Maritime Zone (Norway: UNEP/GRID-Arendal, 2009) at 30-33.
(26.) The Secretary-General, Oceans and the Law of the Sea: Report of the Secretan/ General, Addendum, UNGAOR, 57th Sess, 41, UN Doc. A/57/57/Add.1, (2002).
(27.) "Russia to Apply for Extension of Arctic Shelf Boundaries in 2014" Arctic Info (26 August 2013), online: <http://www.arctic-info.com/News/Page russia-to-apply-for-extension-ofarctic-shelf-boundaries-in-2014->.
(28.) UNCLOS, supra note 18 at pt I, arts 1.1 (pertaining to the "The Area," which is defined as "the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction) and 136 (referring to the Area and its resources as the "common heritage of mankind").
(29.) Roderick Kefferpiitz, On Thin Ice? (Mis)interpreting Russian Policy in the High North (February 2010) CEPS Policy Brief 205 at 3.
(30.) "UNCLOS and the Commission on the Limits of the Continental Shelf (CLCS)" Munk School of Global Affairs, online: <http://gordonfoundation.ca/sites/default/files/images/UNCLOS%20 and%20the%20Commission%20on%20the%20Limits%20of%20the%20Continental%20Shelf.pdf>.
(31.) See "The Continental Shelf Project of the Kingdom of Denmark" Ministry of Science, Innovation and Higher Education, online: <http://a76.dk/lng_uk/main.html> (portions of which pertain to the Arctic).
(32.) "Summary of the recommendations of the Commission on the Limits of the Continental Shelf in regard to the submission made by Norway in respect of the areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea on 27 November 2006" (27 March 2009), available online: <http://www.un.org/Depts/los/clcs_new/submissions_files/nor06/nor_rec_summ.pdf> (portions of which pertain to the Arctic).
(33.) "UN backs Norway claim to Arctic seabed extension" AFP (15 April 2009), online: <http:// www.arctique.uqam.ca/IMG/pdf/UN_backs_Norway_claim_to_Arcfic_seabed_extension.pdf>.
(34.) Riddell-Dixon, supra note 23 at 347.
(35.) "National Strategy for the Arctic Region" The White House (May, 2013), online: <http://www. whitehouse.gov/sites/default/files/docs/nat_arctic_strategy.pdf> with a cover letter from President Barack Obama dated 10 May 2013.
(36.) Continental shelf extension claims do not affect the legal status of the superjacent water column. Reports of a melting polar ice cap, an increasingly long and warmer polar summer, and prospects for an ice-free Arctic summer within 30-100 years, suggest a northern movement in migratory fish patterns toward warmer Arctic waters, attracting a variety of international fishing fleets and the prospect of overfishing. A race for the fish and a race to control overfishing are two likely issue areas of coming concern. See Allison Winter, "U.S. Bans Commercial Fishing in Warming Arctic" NY Times (21 August 2009), online: <http://www.nytimes.com/ gwire/2009/08/21/21greenwire-us-bans-commercial-fishing-in-warming-arctic-33236.html.>.
(37.) Vladimir Golitsyn, "Climate Change, Marine Science and Delineation of the Continental Shelf" in Arctic Science, International Laxe and Climate Change (Berlin: Springer, 2011) at 248.
(38.) Commonwealth of Australia, Continental Shelf Submission of Australia, Executive Summary, Aus Doc ES (2004) <http://www.un.org/depts/los/clcs_new/submissions_files/aus04/Documents/ aus_doc_es_web_delivery.pdf>.
(39.) Hon. Bob Carr, Australian Minister for Foreign Affairs, News Release, "Historic Continental Shelf Proclamation" (25 May 2012) <http://foreignminister.gov.au/releases/2012/bc_mr_120525. html>.
(40.) Supra note 25 at 17.
(41.) Supra note 25 at 16. Currently seventy-three countries have filed claims with Tonga the latest claim on 23 April 2014. See <http://www.un.org/depts/los/clcs_new/commission_submissions. htm> (last updated 8 July 2014).
(42.) See generally "Overlapping sovereignty claims in the Arctic, International Institute for Strategic Studies" International Institute for Strategic Studies (7 March 2012), online: Open Briefing <http://www.openbriefing.org/regionaldesks/polarregions/arcticsovereigntymap/.> See also UNCLOS, supra note 18, art 83 (providing that delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law).
(43.) Michael Becker, "Russia and the Arctic: Opportunities for engagement Within the Existing Legal Framework" (2010) 25:2 Am U Int'l L Rev 225 at 227 (noting ample opportunities for constructive engagement).
(44.) See National Snow & Ice Data Center, Arctic Sea Ice News & Analysis, online: National Snow & Ice Data Center <http://nsidc.org/arcticseaicenews/>. The National Snow and Ice Data Center records a 10.6 percent per decade decline in monthly August Arctic Sea Ice Extent measurements from 1979 to 2013. Sea ice extent for August 2013 averaged 6.09 million square km (2.35 million square miles), or 1.03 million square km (398,000 square miles) below the 1981-2010 average for August.
(45.) See U.S. Geological Survey, "90 Billion Barrels of Oil and 1,670 Trillion Cubic Feet of Natural Gas Assessed in the Arctic" USGS (23 July 2008), online: <http://www.usgs.gov/newsroom/ article.asp?ID=1980&from=rss_home>. The United States Geological Survey estimated that nearly 13 percent of the world's undiscovered oil reserves, 30 percent of its undiscovered gas reserves and 20 percent of its undiscovered natural gas liquids lie north of the Arctic Circle.
(46.) Often treated as one and the same, the Northeast Passage is the waterway straddling the Eurasian landmass from Providence Bay to Murmansk; the Northern Sea Route is the 5,400 kilometer portion of the Northeast Passage from the Kara Sea to the Bering Strait.
(47.) Robert Dufresne, Parliamentary Information and Research Service Law and Government Division, Controversial Canadian Claims aver Arctic Waters and Maritime Zone, PRB 07-47E (Ottawa: Library of Parliament, 10 January 2008) at 2, online: <http://www.parl.gc.ca/Content/LOP/ researchpublications/prb0747-e.pdf>; Central Executive Committee of the U.S.S.R., "Decree of 15 April 1926", reprinted in Leonid Timtchenko, The Russian Arctic Sectoral Concept: Past and Present, (1997) 50(1) Arctic 30, online: <http://pubs.aina.ucalgary.ca/arctic/Arctic50-1-29.pdf>. See also William E Butler, Northeast Arctic Passage (Alphen aan den Rijn: Sijthoff & Noordhoff International Publishers, 1978).
(48.) Arctic Waters Pollution Prevention Act, RSC, 1970, (1970), amended by S.C. ch 41 (1977-78)(Can.) at ch.2 (imposing safety and environmental regulations on all shipping within 100 nautical miles of Canada's Arctic coast);Russian Federation Federal Law N132-&3 On Amendments to Specific Legislative Acts of the Russian Federation related to Governmental Regulation of Merchant Shipping in the Water Area of the Northern Sea Route, adopted by the State Duma, 3 July 2012, approved by The Council of Federation 18 July 2012,online: <http://www.arctic-lio.com/docs/nsr/legislation/ federal_law_nsr.pdf> (establishing, inter alia, navigation rules and administrative requirements for pilotage of vessels in the waters of the Northern Sea Route).
(49.) UNCLOS, supra note 18, art 234 (granting coastal states the right to adopt and enforce non-discriminatory regulations for the prevention, reduction and control of marine pollution where particularly severe climactic conditions and ice covering for most of the year create obstructions or exceptional hazards to navigation and where pollution could cause major harm or irreversible disturbance of the ecological balance).
(50.) Michael Byers, "How the Arctic Ocean could transform world trade", Aljazeera (27 August 2013), online: <http://www.aljazeera.com/indepth/opinion/2013/08/201382273357893832.html> (noting US objections to Russian and Canadian sovereignty claims). See also Scott G Borgerson, "Arctic Meltdown: the Economic and Security implications of Global Warming", (2008) Foreign Aff at 63; and James Kraska, "International Security and International Law in the Northwest Passage", (2009) 42 Vand ] Transnatl L at 1109-1132.
(51.) Mare Liberum, supra note 1 ("[i]t is, then, quite impossible for the sea to be made the private property of any individual: for nature does not merely permit, but rather commands, that the sea shall be held in common" at 65).
(52.) Ibid at 49.
(53.) Ibid at 51.
(54.) For a fuller discussion of Grotius' primary and secondary views of law, the scholastic influences on development of these views, and Iberian assailants of these views, see generally Monica Brito Vieira, "Mare Liberum vs. Mare Clausum: Grotius, Freitas, and Selden's Debate on Dominion over the Seas" (2003) 64:3 J Hist Ideas at 361.
(55.) Mare Liberum, supra note 1 at 53.
(57.) Ibid at 115.
(58.) Ibid at 53.
(59.) Ibid at 55.
(60.) Ibid at 63. This notion would profoundly affect John Locke's ideas on private property; see generally John Locke, The Second Treatise on Civil Government (New York: Prometheus Books, 1986) at 22-25; see also ibid at 19 (indigenous peoples' proprietary rights as a tenancy-in-common in the original state of nature); see generally Karl Olivecrona, "Appropriation in the State of Nature: Locke on the Origin of Property" (1974) 35:2 J Hist Ideas 211.
(61.) Scottish Professor of Civil Law, William Welwood (1578-1622), objected sharply to Grotius' claim regarding the inexhaustibility of the living resources of the seas in his 1613 rejoinder to Mare Liberum: "If the uses of the seas may be in any respect forbidden and stayed it should be chiefly for the fishing, as by which the fishes may be said to be exhaust and wasted, which daily experience these twenty years past and more hath declared to be overttrue. For whereas aforetime the white fishes daily abounded [a reference probably to cod] even into all the shores on the eastern coast of Scotland, ... the shoals of fishes are broken and so far scattered away from our shores and coasts that no fish can now be found worth of any pains and travails, to the impoverishing of all ... our home fishers and to the great damage of all the nation." William Welwood, "Of the Community and Propriety of the Seas" (1613), reprinted in The Free Seas: Hugo Grotius, supra note 13 at 73-74 [spelling his name Welwod],
(62.) Martin J Schermaier, "Res Communis Omnium: The History of an Idea from Greek Philosophy to Grotian Jurisprudence" (2009) 30 Grotiana 22.
(63.) Mare Liberum, supra note 1 at 9.
(65.) Ibid at 65.
(66.) Ibid ("[f]or there are some things which are consumed by use, either in the sense that they are converted ... and therefore admit of no further use, or ... in the sense that they are rendered less fit ..." at 55).
(67.) See ibid at 57. See also Armitage, supra note 13, at xiii (distinguishing possession (possession), use (usus) and ownership (dominium)).
(68.) Mare Liberum, supra note 1 at 81.
(69.) Ibid (citing Cicero and Ovid for the proposition that most running water is classified "among the things that are common to all" at 61); but see William Welwood, An Abridgment of all Sea-Lawes (London: Humfrey Lownes, 1613) (arguing that although the sea is "liquid, fluid, and unstable in the particles thereof, yet in the whole body it is not so, because it keeps the prescribed bounds strictly enough concerning the chief places and limits thereof" at 67); see also ibid (claiming, despite its constantly changing appearance, that "the sea most constantly keeps the set place prescribed by the Creator [and so lends itself to] conquest" at 72). See also Reppy, supra note 12, at 270.
(70.) Mare Liberum, supra note 1 at 65.
(71.) See United Nations Convention on the High Seas, 29 Apr. 1958, art.2, 13 U.S.T. 2312,2314, T.I.A.S. 5200, 450 U.N.T.S.82, 82 (comprising, inter alia, both for coastal and non-coastal States: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay submarine cables and pipelines; and (4) Freedom to fly over the high seas.
(72.) See Kemal Baslar, The Concept of the Common Heritage of Mankind in International Lazv (Hague: Nijhoff Publishers, 1998) at 40-43. See generally C. Joyner, "Legal Implications of the Concept of the Common Heritage of Mankind", (1986) 35 Int'l & Comp. LQ at 190; Charlotte Ku, "The Concept of Res Communis in International Law", (1990) 12:4 History of European Ideas at 459; Mathias Risse, "Common Ownership of the Earth as a Non-Parochial Standpoint: A Contingent Derivation of Human Rights", (2008) 17:2 European Journal of Philosophy at 277-304. See also Schermaier, supra note 62; and Scott J Shackelford, "The Tragedy of the Common Heritage of Mankind", (2009) 28 Stan Envtl L] at 109.
(73.) Agreement Goivrning the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 18,1979, G.A. Res 34/68, U.N. GAOR, 34th Sess., Agenda Items 48, 49, at 1, U.N. Doc. A/Res/34/68 (1979), reprinted in 181.L.M. 1434-41 (1979).
(74.) Third United Nations Conference on the Law of the Sea: Final Act, Dec. 10 1982, U.N. Doc. A/CONF. 62/121.
(75.) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies,27 January 1909,18 U.S.T. 2416, 610 U.N.T.S. 205 (entered into force October 10, 1967).
(76.) See Burns H Weston & David Bollier, Green Governance: Ecological Survival, Human Rights and the Law of the Commons (York: Cambridge University Press, 2013).
(77.) See Edith Brown Weiss, "Planetary Trust: Conservation and Intergenerational Equity", (1984) 11 Ecology LQ at 551; James C Wood, "Intergenerational Equity and Climate Change", (1995-1996) 8 The Georgetown Int'l Envtl L Rev at 293, 325.
(78.) See John E Noyes, "The Common Heritage of Mankind: Past, Present, and Future", (2011) 40 Denver J Int'l L & Pol at 447; and Anastasia Strati, The Protection of the Undertvater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea (Hague: M. Nijhoff Publishers, 1995).
(79.) See Mathias Risse, "Who Should Shoulder the Burden? Global Climate Change and Common Ownership of the Earth", (15 January 2009) HKS Working Paper No. RWP08-075; and Kristen H Engel & Scott R Saleska, "Subglobal Regulation of the Global Commons: The Case of Climate Change", (2005) 32 Ecology LQ at 183.
(80.) See Kathryn Milun, The Political Uncommons: The Cross-Cultural Logic of the Global Commons (Burlington, V.T.: Ashgate, 2011); and Jonathan Curci, The Protection of Biodiversity and Traditional Knoivledge in International Law of Intellectual Property (Cambridge: Cambridge University Press, 2010) at 9.
(81.) See generally UN World Commission on Environment and Development, Report, "Our Common Future", A/42/427,11(2) (1982), online: <http://www.un-documents.net/ocf-10.htm> (referring to the geo-stationary orbit as the 'geosynchronous orbit). See also Marvin S Soroos, "The Commons in the Sky: The Radio Spectrum and Geosynchronous Orbit as Issues in Global Policy", (1982) 36 International Organizations at 665; and Shane Chaddha, "A Tragedy of the Space Commons?", (2010) SSRN, online: <http://papers.ssrn.com/sol3/papers.cfm7abstract_ id=1586643> (arguing that the space environment is a finite resource system that is susceptible to self-interested use and exploitation).
(82.) Maj. Gen. Mark Barrett, Dick Bedford, Elizabeth Skinner & Eva Vergles, "Assured Access to the Global Commons", Supreme Allied Command Transformation, North Atlantic Treaty Organization, (April 2011), online: <https://www.act.nato.int/multimedia/ video?task=alphabetic&id=43&sl=alphabetic&layout=simple&start=55&Itemid=179& option=com_videoflow&limitstart=55&view=videoflow&fontstyle=f-smaller>.
(83.) See Jennifer Frakes, "Common Heritage of Mankind Principle and Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise", 2003 21 Wis Int'l LJ at 409; Bradley Larschan & Bonnie C Brennan, "Common Heritage of Mankind Principle in international Law", (1983) 21 Colum J Transnatl L at 305.
(84.) Marvin S Soroos, The Endangered Atmosphere: Preserving a Global Commons (Columbia, S.C.: University of South Carolina Press, 1997) at 2; Magnus Wijkman, "Managing the Global Commons" (1982) 36 International Organization at 511; MCW Pinto, "The International Community and Antarctica", (1978-1979) 33 U. Miami L. Rev. at 479.
(85.) Jasper A Bovenberg, Property Rights in Blood, Genes & Data: Naturally Yours1 (Boston: Martinus Nijhoff Publishers, 2006).
(86.) Terry Macalister, "Climate change could lead to Arctic conflict, warns senior NATO commander", The Guardian (11 October 2010), online: <http://www.theguardian.com/ environment/2010/oct/ll/nato-conflict-arctic-resources>; Nataliya Vasilyeva, "Russia, Canada Make Competing Claims To Arctic Resources", Winnipeg Free Press (16 September 2010), online: <http://www.winnipegfreepress.com/breakingnews/russia-canada-in-rivalry-over-arcticresources-expect-favourable-un-ruling--103033134.html>; Tony Halpin, "President Medvedev Threatens Russian Arctic Annexation", Times Online (September 18, 2008), online: <http://www. timesonline.co.uk/tol/news/world/europe/article4773567.ece>.
(87.) See Frakes, supra note 83 at 411-414 (2003); B Larschan & CB Brennan, "The Common Heritage of Mankind Principle in International Law", (1983) 21 Columbia J Transnational L at 305, 336; J Van Dyke and C Yuen, "Common Heritage v. Freedom of the Seas: Which Governs the Seabed?", (1982) 19 San Diego L Rev at 493; F Francioni and T Scovazzi eds., International Law for Antarctica (Hague: Nijhoff Publishers, 1996); C Christol, "The Common Heritage of Mankind Provision in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies", (1980) 14 International Lawyer at 429; Bin Cheng, Studies in International Space Law (Oxford: Oxford University Press, 1997) at 155-57; and PPC Hannapel, The Law and Policy of Air Space and Outer Space: A Comparative Approach (Hague: Kluwer Law International, 2003).
(88.) See Scott J Shackelford, "Was Selden Right? The Expansion of Closed Seas and its Consequences" (2011) Stanford J Int'l L at 47 fn.7 and accompanying text (preferring usage of the term "transnational commons" instead of "global commons" because the former term is broad enough to incorporate outer space and cyberspace).
(89.) See Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990) (discussing self-management prospects for natural or human made resources--goods--generally deemed too large to exclude beneficiaries from use). It appears Ostrom's ideas have found a place in American legal circles, but mostly in those related to general property theory, environmental and natural resource law, and intellectual property. See Carol M Rose, "Ostrom and the Lawyers: The Impact of Governing the Commons on the American Legal Academy", (2010) 10-73 Arizona Legal Studies Discussion Paper, online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1701358>.
(90.) See Karl Zemanek, "Was Hugo Grotius Really in Favour of the Freedom of the Seas?", (1999) 1J Hist Int'l L at 46,59 (noting "[v]ery few of the scholars who refer to the Grotian idea in their teaching present it in its true context)."
(91.) In 1568, hostilities broke out between the Netherlands and the reigning king of Spain, Philip II. By 1579, the Dutch Provinces had created a collective self -defense pact through the Union of Utrecht. Under Prince William of Orange, a general assembly was created--the States-General--which, in 1581, declared independence as the Dutch Republic. The republic was a federation of seven provinces with Holland serving as the richest and most powerful.
(92.) See Richard Falk, "The Grotian Quest," in Richard Falk et al eds, International Law: A Contemporary Perspective (Boulder: Westeview Press, 1985) at 36-37.
(93.) The principal Alexandrine bulls, the so-called bulls of donation (granting overseas territorial control to Iberian powers), were Inter caetera (3 May 1493, relating to Spanish grants; 4 May 1493, relating to Portuguese grants), and Eximiae devotionis (3 May 1493) followed by Dudum siquidem (26 September 1493): see H Vander Linden, "Alexander VI and the Demarcation of the Maritime and Colonial Domains of Spain and Portugal, 1493-1494," (1916) 22 The American Historical Rev at 3, 8. For accounts of competition between Spain and Portugal in the African Atlantic', see generally Felipe Fernandez-Armesto, "Spanish Atlantic Voyages and Conquests before Columbus," in John B Hattendorf, ed, Maritime History: The Age of Discovery (Malabar, FL: Krieger Publishing, 1996) at 136ff.
(94.) See Elizabeth Mancke, "Oceanic Space and the Creation of a Global International System, 1450-1800," in Daniel Finamore, ed, Maritime History as World History (Gainesville: University Press of Florida, 2004) at 149-150.
(95.) Bo Johnson Theutenberg, "Mare Clausum et Mare Liberum" (1984) 37:4 Arctic 481 at 490.
(96.) AN Ryan notes that confusion regarding Columbus' discovery of the New World and its relationship to India prompted negotiators to decline to nominate a complementary meridian in the eastern hemisphere: AN Ryan, "The New World and Asia 1492-1606," in Maritime History as World History, supra note 94 at 259. The Treaty of Zaragoza (22 April 1529) established a demarcation line between Spain and Portugal in the eastern sphere.
(97.) Elizabeth Mancke, "Early Modern Expansion and the Politicization of Oceanic Space," (1999) 89:2 The Geographical Rev at 225, 229.
(98.) Mancke, supra note 94 at 151.
(99.) Theutenberg, supra note 95 at 482.
(100.) See Francis H Upton, The Laxo of Nations Affecting Commerce During War: With a Reviero of the Jurisdiction, Practice and Proceedings of Prize Courts (New York: Voorhies, 1863) at 100-101. See also Robert Fruin, "An unpublished work of Hugo Grotius'" 13 Bibliotheca Visseriana (1925) at 26-27, who notes that the Dutch Admiralty regulation of 13 August 1597 required privateers to remunerate twenty percent of the booty to the state, ten percent to the admiral-general (navy) and the remainder to the ship owner, captain and crew. In the case of the Santa Catarina, infra, the captain and crew received no more than four percent, which the captain protested.
(101.) See Jerald A Combs, The Jay Treaty: Political Battleground of the Founding Fathers (Los Angeles: University of California Press, 1970) at 140.
(102.) Paris Declaration Respecting Maritime Law (16 April 1856). The granting of Letters of Marque and Reprisal find textual expression in the U.S. Constitution as an enumerated power of Congress. See Art. I, sec. 8, cl. 11.
(103.) See Jean Bodin, Les Six livres de la Republic (1576) at I.VIII and I.X.
(104.) Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (New York: Cambridge, 2002) at 3, 93.
(105.) Mare Liberum, supra note 1 at 153.
(107.) Supra note 90 at 50 fn 7. See also Martine Julia Van Ittersum, Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Pouvr in the East Indies (1595-1615) (Leiden: Brill Academic Publishers, 2006) at 487. Carl Schmitt noted Grotius' views on trade were repetitive of Gentili's ideas. See Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (New York: Telos Press, 2006) at 179.
(108.) See Mare Liberum, supra note 1 at 153-155. Peter Borschberg discusses Grotius' usages of these concepts as extensions of the broader notions of the jus communicationis (the right of free and unimpeded communication), which Grotius adapted from Francisco di Vitoria. See Peter Borschberg, Hugo Grotius, the Portuguese and Free Trade in the East Indies, (Singapore: NUS Press, 2010) at 83, 84 and 89 [Borschberg, Hugo Grotius]; see also Kenneth R Simmonds, Grotius and the Law of the Sea--a Reassessment, in Grotius et L'ordre juridique International, Alfred Dufour, Peter Haggenmacher, and Jiui Toman eds. (1985) at 43, 45.
(109.) Clark G Reynolds, History and the Sea: Essays on Maritime Strategies (Columbia: University of South Carolina Press, 1989) at 20.
(110.) See John B Hattendorf, "The Sea as an Arena for Conflict" in Hattendorf, supra note 93 at 130, noting the development of a Minoan sea network in the Aegean and Eastern Mediterranean.
(111.) See JH Thiel, Studies on the History of Roman Sea-Power in Republican Times (Amsterdam: North-Holland Publishing, 1946) at 1, 21-22.
(112.) See Richard W Unger, "Power and Domination: Europe and the Sea in the Middle Ages and the Renaissance," in Maritime History as World History, supra note 94 at 140.
(113.) See generally Mike Burkhardt, "The German Hanse and Bergen: New Perspectives on an Old Subject," (2010) 58:1 Scandinavian Economic History Rev 60.
(114.) JES Fawcett, "How Free Are the Seas?" (1973) 49:1 Int'l Aff 14.
(115.) Reynolds, supra note 109, at 40.
(116.) See Theutenberg, supra note 95 at 488.
(117.) Edward Gordon, "Grotius and the Freedom of the Seas I the Seventeenth Century," (2008) 16:2 Willamette J Int'l L & Disp Resol 252, at 253, citing Vazquez y Menchaca's Controrversiarum illiustrium usuque frequentium libri tres and 254, noting that Queen Elizabeth demanded that foreign vessels entering English waters strike their topsails and take in their flags in recognition of Britain's sovereign jurisdiction.
(118.) In the main or not, Grotius cited Vazquez seventy-four times in De jure Praeda Commentarius. See Vieira, supra note 54 at 361.
(119.) See Theutenberg, supra note 95 at 482.
(120.) Ibid at 483.
(121.) See Welwood, supra note 61 at 71 (noting specifically the "covenant twixt Scottish men and Hollanders concerning ... fishing).
(122.) Ibid at 73 (noting that the alienation of use itself fostered a diversion of use (diverticulum)).
(123.) See TW Fulton, The Sovereignty of the Sea: An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters (London: William Blackwood & Sons, 1911) at 30. 'Keeping the narrow sea' is a poetic refrain from the old English poem The Libelle of Englyshe Polycye in reference to exercising control over the strategic English Channel.
(124.) See Fawcett, supra note 114 at 49. See also Anna Agnarsdottir, "The Danish Empire: The Special Case of Iceland," in Mary N Harris et al eds, Europe and its Empires (Pisa University Press, 2008) 59-84; see also HSK Kent, "Historical Origins of the Three-Mile Limit," (1954) 48 Am J Int'l L 538.
(125.) See Theutenberg, supra note 95 at 485-487.
(126.) Peter Borschberg, Hugo Grotius' Theory of Trans-Oceanic Trade Regulation: Revisiting Mare Liberum (1609), (State University, 2005) fn.120.
(127.) See Susan J Buck, The Global Commons: An Introduction, (Washington: Island Press, 1998) at 76.
(128.) See Theutenberg, supra note 95 at 489.
(129.) Mancke, supra note 94 at 150-151 [footnote omitted],
(130.) See Hugh Bicheno, Crescent and Cross: The Battle of Lepanto 1571 (London: Cassell, 2003) at 210 (discussing the papal formation of the Holy League).
(131.) Most importantly, the Portuguese claim to exclude the Dutch from the Malaccan Strait, sometimes called the Strait of Singapore, which separates Sumatra from Malacca.
(132.) Michael Bertram Crowe, "An Eccentric Seventeenth-Century Witness to the Natural Law: John Selden (1584-1654)" in Knud Haakonssen, ed, Grotius, Pufendorf and Modern Natural Law (Aldershot, VT: Dartmouth Publishing Co., 1998) 107 at 110 [Crowe, "John Selden"].
(133.) Mare Liberum, supra note 1 at 85.
(134.) Ibid (arguing "there is no part of the sea upon which someone has not been the first to enter" at 85); he also rejected the more modest Portuguese claim that "[they] were the first to restore to use a navigable area which had lain neglected for perhaps many centuries." Ibid at 89.
(135.) Ibid at 85.
(137.) Ibid at 89.
(138.) Supra note 90 at 53-54.
(139.) See generally John Selden, Of the Dominion; or, Oivnership of the Sea, translated by Marchamont Nedham (New York: Arno Press, 1972); Vieira, supra note 54 at 373; and Crowe, "lohn Selden", supra note 132 at 110-111 (Selden wrote the response in 1617, but publication was withheld for fear of complicating relations with Scandinavian powers, until published by order of Charles I in 1635).
(140.) Welwood, supra note 61 at 72. For a listing of British jurists advocating a mare clausum before the time of James I, see Simmonds, supra note 108 at 45 (citing works of lohn Dee (1577), Edmund Plowden (1578), Welwood, and Thomas Craig (1603)).
(141.) Mare Liberum, supra note 1 at 55.
(142.) Ibid at 113.
(143.) Ibid at 123 (referencing, presumably, the Gulf of Genoa in the northernmost waters of the Ligurian Sea).
(145.) Borschberg, Hugo Grotius, supra note 108 at 164-165.
(146.) Armitage, supra note 13 at xi, cited in Peter Borschberg "Hugo Grotius' Theory of Trans-Oceanic Trade Regulation: Revisiting Mare Liberum (1609)" History and Theory of International Law Series at 11-12.
(147.) See William Welwood, An Abridgement of All the Sea-Lams (1613); John Selden, Mare Clausum (1635); Serafin de Freitas, De iusto imperio Lusitanorum Asiatico (1625). Alexandrowicz noted strong points of connection between Freitas' critique and Selden's critique of Grotius. See CH Alexandrowicz, "Freitas versus Grotius" (1959) 35 Brit YB Int'l L 162. Edward Gordon notes that some Spanish scholars regard luan de Solorzano Pereira's De Indiarum iure, as the most systematic juridical formulation of a prescriptive right argument favoring Iberian claims; he notes Pereira's treatise receives scantily any attention in the English speaking world. See Gordon, supra note 117 at 262.
(148.) Jonathan I Israel, Dutch Primacy in World Trade, 1585-1740, (Oxford University Press, 1989) at 80.
(150.) Ibid at 82.
(151.) Oldenbarnevelt was also recognized as the de facto political leader of the United Provinces: Van Ittersum, supra note 107 at xxiv.
(152.) See Geoffrey Parker, Global Crisis: War, Climate Change & Catastrophe in the Seventeenth Century (New Haven: Yale University Press, 2013) at 218.
(153.) Henk Nellen, "The History of Grotius and His Printers, Explained on the Basis of Five Portraits" (2011) 39:2 Int'l J Legal Info 210 at 212.
(154.) Israel, supra note 148 at 81.
(157.) Supra note 91 at 51 fn9.
(158.) Israel, supra note 148 at 80-81.
(159.) See Martine lulia Van Ittersum, "Preparing Mare liberum for the Press: Hugo Grotius' Rewriting of Chapter 12 of De Jure Praedae Commentarius in November-December 1608" (2007) 26:1 Grotiana 246, at 248, 256. Van Ittersum notes the Twelve Years' Truce delayed war between Spain's Phillip III and the Low Countries until 1621, yet failed to take hold in the East Indies, where the Dutch solidified interests versus Iberian powers using Mare Liberum as a perfect justification for war-by-proxy fought thousands of miles from Europe (ibid at 273).
(160.) See Armitage, supra note 13 at xi. Though published in Latin in 1609, the Dutch translation issued in 1614 was the first to reveal the author's name. Vervliet, supra note 10 at ix.
(161.) See generally Borschberg, Hugo Grotius, supra note 108; Eric Wilson, "Erasing the Corporate Sovereign, Inter-Textuality and an Alternative Explanation for the Publication of Hugo Grotius' Mare Liberum (1609)" (2006) 30:2 Itinerario 78; Van Ittersum, Profit and Principle, supra note 107; Georg Cavallar,"Vitoria, Grotius, Pufendorf, Wolff and Vattel: Accomplices of European Colonialism and Exploitation or True Cosmopolitans," (2008) 10:2 J Hist Int'l L 181; and Keene, supra note 104.
(162.) Gellenik, supra note 11 at 147-150 (Grotius mastered Latin and Greek by age eight and published numerous highly regarded poems and plays, almost all of which remained in print throughout his life). Henk JM Nellen referred to him as a master propagandist: "Whether he wrote in Latin, Dutch or French made no difference. His style was always clear, succinct and eloquent." Henk JM Nellen, "Hugo Grotius' Political and Scholarly Activities in the Light of his Correspondence" in Hans W Blom, ed, Property, Piracy and Punishment: Hugo Grotius on War and Booty in De iure praedae--Concepts and Contexts (Leiden: Brill, 2009) 16 at 21 [Blom], Edward Gordon notes he wrote some sixty books in Latin, two biblical dramas, translated into Latin from Dutch a paper on navigation, and wrote works on astronomy. Gordon, supra note 117 at 259.
(163.) Martine J Van Ittersum, "Knowledge Production in the Dutch Republic: the Household Academy of Hugo Grotius" (2011) 72:4 J Hist Ideas 523 at 523.
(164.) Van Ittersum notes Grotius purchased the doctorate in law from Orleans, which was "a perfectly normal thing to do for a seventeenth century gentleman on the grand tour." Van Ittersum, Profit and Principle, supra note 107 at xxiv-xxv.
(165.) Gellinek, supra note 11 at 2. (Grotius was appointed attorney general and first public comptroller at the Courts of Holland, Westfriesland, and Zeeland in 1607--the highest legal office a Dutch lawyer could hold). In 1613, he became pensionary (legal advisor) of Rotterdam, later deputed to the States of Holland; he then served as a representative of his home province in the States-General. See Van Ittersum, "Preparing Mare liberum", supra note 159 at 250.
(166.) Gellinek, supra note 11 at 2.
(167.) Ibid at 28.
(168.) See Van Ittersum, Profit and Principle, supra note 107 at xxv.
(169.) Martianus Capella. Satyricon De nuptiis philologiae & mercurij, o de septem artibus liberalibus (Leiden: Plantiniana apud Christophorum Raphelengium, 1599).
(170.) See Nellen, supra note 153 at 211-212.
(171.) See Eric Wilson, "The VOC, Corporate Sovereignty and the Republican Sub-Text of De iure praedae" (2007) 26:1 Grotiana 310 at 313 (listing De republica emendanda (c. 1600), Annales et historiae de rebus Belgicis (1601-12), Commentarius in theses XI (1603-8), Mare liberum (1609), and De antiquitate Republicae Batavicae (c.1610) as examples of juvenile works by Grotius, discursive of his Republicanism).
(172.) Nellen, "Grotius and His Printers", supra note 153 at 211. See also Henk JM Nellen, Hugo de Groot: Een leven in strijd om de vrede (official Dutch State biography) (The Hague: Balans Publishing, 2007).
(173.) Christopher R Rossi, Broken Chain of Being: James Brown Scott and the Origins of Modern International Law (The Hague: Kluwer Law International, 1998) at 47-48; see also Laurens Winkel, "Problems of Legal Systematization from De iure praedae to De iure belli ac pads. De iure praedae Chapter II and the Prologomena of De iure belli ac pads" (2007) 26:1 Grotiana 61.
(174.) See Hersch Lauterpacht, "The Grotian Tradition in International Law" (1946) 23 Brit YB Int'l L 3; see also Patrick Riley, "The Legal Philosophy of Hugo Grotius" in Enrico Pattaro, ed, The Philosophers' Philosophy of Laxo from the Sex'enteenth Century to Our Days (Dordrecht: Springer, 2009) 11 at 11.
(175.) See Nicholas Greenwood Onuf, The Republican Legacy in International Thought (New York: Cambridge University Press, 1998) at 130 (citing Tadashi Tanaka, "State and Governing Power" and Masaharu Yanagihara, "Dominium and Imperium" in Yasuaki Onuma, ed, A Normative Approach to War: Peace, War, and Justice in Hugo Grotius (Oxford: Clarendon Press, 1993) at 137, 147); Henk JM Nellen, "Hugo Grotius' Political and Scholarly Activities in the Light of his Correspondence" (2007) 26:1 Grotiana 16 at 20 (noting Grotius collected citations that had to fit as material in his line of reasoning, without much attention to original context).
(176.) See generally Benjamin Straumann, "Is Modern Liberty Ancient? Roman Remedies and Natural Rights in Hugo Grotius' Early Works on Natural Law" (2009) 27:1 Law and History Rev 55.
(177.) See generally Onuf, supra note 175. See also Richard Tuck, Philosophy and Government 1572-1651 (Cambridge: Cambridge University Press, 1993) at 154-169.
(178.) See generally Keene, supra note 104 (referring to the concept as 'divisible sovereignty').
(179.) See generally William P George, "Grotius, Theology, and International Law: Overcoming Textbook Bias" (1999) 14:2 Journal of Law and Religion 605.
(180.) Michael Bertram Crowe, "The Tmpious Hypothesis': A Paradox in Hugo Grotius?" in Knud Haakonssen, ed, Grotius, Pufendorfand Modern Natural Laxv (Aldershot, VT: Dartmouth Publishing Co., 1998) 3 at 3-35 ff [Crowe, "Hugo Grotius"].
(181.) See Hugo Grotius, De Jure Belli ac Pads Libri Tres, Carnegie ed (Oxford: The Clarendon Press, 1925) Prologomena, para 11, at 13 ("What we have been saying would have a degree of validity even if ... there is no God, or that the affairs of men are of no concern to Him") [translated by F. Kelsey], See also James St. Leger, The "etiamsi daremus " of Hugo Grotius: A Study in the Origins of International Laxe (Rome: Pontifico Ateneo "Angelicum," 1962). As Knud Haakonssen has noted, however, the etiamsi daremus passage marking Grotius as a great secularizer did little more than rephrase a technique borrowed from the mid-fourteenth century scholastic tradition and what his contemporary Spanish neo-Thomist had written: see Knud Haakonssen, "Hugo Grotius and the History of Political Thought" (1985) 13:2 Political Theory 239 at 248-249. On the importance of fictionalizing in order to understand reality, see Hans Vaihinger, The Philosophy of'as if; a system of the theoretical, practical and religious fictions of mankind (London: Harcourt, Brace & Co, 1924) [translated by C.K. Ogden],
(182.) Mare Liberum, supra note 1 at 19. Edward Gordon importantly notes Grotius' most influential erudition lay in his familiarity with the history and tenets of Christianity and his ability to remove barriers of inessential dogma. Gordon, supra note 117 at 259-260. For Grotius' treatment of biblical authority, which cautioned against 'rival traditions of biblical exegesis' to show the Bible should not be referenced in international law, see Mark Somos, "Secularization in De lure Praedae: From Bible Criticism to International Law" in Blom, supra note 162 at 147.
(183.) Stephen D Krasner, "Structural causes and regime consequences: regimes as intervening variables" in Stephen D Krasner, ed, International Regimes (Ithaca: Cornell University Press, 1983) 1; OR Young, "Regime Dynamics: The Rise and Fall of International Regimes" in Stephen D Krasner, ed, International Regimes (Ithaca: Cornell University Press, 1983) 93; Stephan Haggard & Beth A Simmons, "Theories of International Regimes" (1987) 41 International Organization 491; Friedrich Kratochwil & John Gerard Ruggie, "International Organization: A State of the Art on the Art of the State" (1986) 40 International Organization 753.
(184.) See Rossi, Broken Chain of Being, supra note 173 at 2-5.
(185.) Ibid at 2-5. See also John D Haskell, "Hugo Grotius in the Contemporary Memory of International Law: Secularism, Liberalism, and the Politics of Restatement and Denial" (2011) 25 Emory Int'l L Rev 269 at 270 (noting cyclical and fetishistic attraction to Grotius in fields of international law and politics).
(186.) Borschberg, Hugo Grotius, supra note 108 at 103-105.
(187.) See Thomas S Kuhn, The Structure of Scientific Revolutions, 4th ed (Chicago: The University of Chicago Press, 2012). Kuhn's book is one of the most cited in the social science index and discusses the importance of paradigms, how they inform, mislead, and change.
(188.) See "The Grotian Moment" in Richard Falk, Friedrich V Kratochwil & Saul H Mendlovitz, eds, International Law: A Contemporary Perspective (Boulder: Westview Press, 1985) 7; Boutrous Boutros-Ghali, "The Role of International Law in the Twenty-First Century: A Grotian Moment" (1995) 18 Fordham Int'l LJ 1609 at 1613; Michael P Scharf, "Seizing the "Grotian Moment": Accelerated Formation of Customary International Law in Times of Fundamental Change" (2010) 43 Cornell Int'l LJ 439 at 441; Milena Sterio, "A Grotian Moment: Changes in the Legal Theory of Statehood" (2011) 39:2 Denv J Int'l L & Pol'y 209 at 211-215.
(189.) See generally Lauterpacht, supra note 174. See also Benedict Kingsbury, "A Grotian Tradition of Theory and Practice?: Grotius, Law, and Moral Skepticism in The Thought of Hedley Bull" (1997) 17:1 Quinnipiac L Rev 3; Martin Wight, International Theory: The Three Traditions ed by Gabriele Wight & Brian Porter (Leicester: Leicester University Press for the Royal Institute of International Affairs, London, 1991); A Claire Cutler, "The 'Grotian tradition' in international relations" (1991) 17 Rev of Int'l Studies 41; and John T Parry, "What is the Grotian Tradition in International Law?" (2013) 35:2 U Penn J Int'l L 299-377.
(190.) Lauterpacht, supra note 174 at 51. See also H Bull, "The Grotian Conception of International Society" in Herbert Butterfield & Martin Wight, eds, Diplomatic Investigations: Essays in the Theory of World Politics (London: Allen & Unwin, 1966) 51; Martin Wight, "Western Values" in ibid 89-131; and Georg Schwarzenberger, Poiver Politics: An Introduction to the Study of International Relations and Post-War Planning (London: J Cape, 1941). Renee Jeffery notes the influence of Lauterpacht's 'Grotian Tradition', which emphasized principles of "generosity, gratitude, pity [and] charity": Renee Jeffery, "Hersch Lauterpacht, the Realist Challenge and the 'Grotian Tradition' in 20th Century International Relations" (2006) 12:2 Eur J Int'l Relations 223 at 238.
(191.) See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge: Cambridge University Press, 2001) at 355. See also Martti Koskenniemi, "Lauterpacht: The Victorian Tradition in International Law" (1997) 8:2 Eur J Int'l L 215.
(192.) Lauterpacht, supra note 174 at 5.
(193.) See Editor's note in "The Grotian Tradition in International Law" in E Lauterpacht, ed, International Law, Being the Collected Papers of Hersch Lauterpacht, vol 2 (Cambridge: University Press, 1975) 307 at 307.
(194.) According to Lauterpacht, "[t]he fact seems to be that on most subjects which he discusses in his treatise [i.e., Mare Liberum] it is impossible to say what is Grotius' view of the legal position." (Lauterpacht, supra note 174 at 5); Lauterpacht's 11 main features of the Grotian tradition include: 1). The Subjection of the Totality of International Relations to the Rule of Law; 2). The Acceptance of the Law of Nature as an Independent Source of International Law; 3). The Affirmation of the Social Nature of Man as the Basis of the Law of Nature; 4). The Recognition of the Essential Identity of Sates and Individuals; 5). The Rejection of 'Reason of State'; 6). The Distinction between Just and Unjust Wars; 7). The Doctrine of Qualified Neutrality; 8). The Binding Force of Promises; 9). The Fundamental Rights and Freedoms of the Individual; 10). The Idea of Peace; and 11). The Tradition of Idealism and Progress. (Ibid).
(195.) The term 'tradition' is sometimes unselfconsciously employed but generally has been described as "the handing on of formed ways of acting, a formed way of living," by "communicative and self-conscious creatures;" as "a cluster of institutionalized continuities." See Onuf, supra note 175 at 8.
(196.) Garrett Hardin, "The Tragedy of the Commons" (1968) 162 Science 1243.
(197.) Ibid at 1244.
(199.) Hardin's actual quote was: "... the oceans of the world continue to suffer from the survival of the philosophy of the commons. Maritime nations still respond automatically to the shibboleth of the 'freedom of the seas'." (Ibid at 1245).
(200.) The full title is: Mare Liberum sive De iure quod Batavis competit ad Indicaria commercio [-] Dissertatio (The Free Sea or a Dissertation on The Right Which the Dutch Have to Carry on Indian Trade).
(201.) See Van Ittersum, supra note 107 at 487.
(202.) Paul A Samuelson, Economics 9th ed (New York: McGraw-Hill, 1973) at 670.
(203.) Mare Liberum, supra note 1 at 137.
(204.) Ibid at 139.
(205.) From his heralded two-volume book, Strange Parallels: Southeast Asia in Global Context, c. 800-1830, vol 1 & 2 (New York: Cambridge University Press, 2003 & 2009).
(206.) CG Roelofsen, "Grotius and International Law" in LE van Hoik & CG Roelofsen, eds, Grotius Reader: a reader for students of international laui and legal history (The Hague: TMC Asser Instituut, 1983) 3 at 12.
(208.) Borschberg, Hugo Grotius, supra note 108 at 101 (referencing specifically the Dutch East India Company, infra) [footnote omitted].
(209.) Philip D Curtin, Cross-Cultural Trade in World History (Cambridge: Cambridge University Press, 1984) at 153-154.
(210.) Borschberg, Hugo Grotius, supra note 108 at 102.
(212.) Olaf U Janzen, "A World-Embracing Sea: The Oceans as Highways, 1604-1815," in Maritime History as World History supra note 94 at 102.
(213.) JR Hale, Renaissance Exploration (London: British Broadcasting Corporation, 1968) at 7 (noting with the exception of Australia and the Antarctic and the northern coasts of America and Asia, the "outlines of the world map were not drastically dissimilar to those in our own atlases").
(214.) Ibid. Felipe Fernandez-Armesto referred to it as the "breakthrough" generation of the 1490s. Felipe Fernandez-Armesto, "The Indian Ocean in World History" in Anthony Disney & Emily Booth, eds, Vasco da Gama and the Linking of Europe and Asia (New Delhi: Oxford University Press, 2000) at 11,14. JR Hale called it "possibly the climactic generation in world history." JR Hale, supra note 213 at 7. Diaz rounded the Cape of Good Hope (1488), Columbus discovered the West Indies (1492), da Gama charted a sea route to Calicut, India (1498); Cabral opened up Brazil for exploration (1500), Balboa sighted the Pacific Ocean (1513), confirming the continental discovery of the Americas, and Magellan's crew (minus Magellan, who had been killed in the Philippines) circumnavigated the globe (1519-1522).
(215.) John L Allen "From Cabot to Cartier: The Early Exploration of Eastern North America, 1497-1543" (1992) 82:3 Annals of the Association of American Geographers 500-521 [Allen]; see also KM Panikkar, Asia and Western Dominance: A sumey of the Vasco Da Gama Epoch of Asian History 1498-1945, (London: George Allen & Unwin, 1953) at 29-31 (recounting specifically accomplishments of Arab, Chinese, and Hindu mariners); and CEM Pearce and FM Pearce, "Chapter 4. Transoceanic Trade and Migration: Following Currents from the West Pacific Warm Pool into the Indian Ocean: The Cinnamon Route and the Colonization of Madagascar," (2010) Oceanic Migration 67-86; and Lionel Casson, "Seaborne Exploration in the Ancient World" in Maritime History as World History, supra note 94 at 35-46.
(216.) Felipe Fernandez-Armesto, "Maritime History and World History," in Maritime History as World History, supra note 94 at 30.
(217.) JR Hale, supra note 213 at 22.
(218.) Schmitt, supra note 107 at 140.
(219.) See Hale, supra note 213 at 26; see also Philipp Pattber " Conquest, Domination and Control: Europe's Mastery of Nature in Historic Perspective" (2007) 14 Journal of Political Ecology 1-9. William Welwood, in his 1613 critique of Grotius' Mare Liberum, citing Genesis 1:28 ("Subdue the earth, and rule over the fish"), noted God's command "could not be but by a subduing of the waters also." "Of the Community and Propriety of the Seas" in Hugo Grotius: The Free Sea, supra note 13 at 66.
(220.) See Ian Friel, "Guns, Gales and God: Elizabeth I's 'Merchant Navy'," (2010) 60:1 History Today 45-51; see also Unger, supra note 112 at 143-144, on the evolution of the Celtic cog vessel and full-rigged square and triangular sail design. Technological improvements in navigation began to replace dead-reckoning more routinely by the end of the fifteenth century, including wide-spread use of the compass and the magnetized needle, the gimbal (a suspension device to stabilize the compass in rough sea), and advancements in chart use and cartography. See generally Richard W Unger, "Power and Domination: Europe and the Sea in the Middle Ages and the Renaissance," in Maritime History as World History, supra note 94 at 21-33; see also John H Pryor, Geography, Technology, and War: Studies in the Maritime History of the Mediterranean, 649-1571, (Cambridge, 1988) at 53.
(221.) Fernand Braudel & Sian Reynolds (Translator), Civilization b Capitalism 15th-18th Century (The Wheels of Commerce), vol 2 (University of California Press, 1983) 365-369 [2 Braudel],
(222.) Allen, supra note 215 at 500; see also Phillip Lawson, The East India Company: A History (London: Longman, 1993) at 2,3.
(223.) See generally Fernandez-Armesto, supra note 216. See also CR Boxer, The Portuguese Seaborne Empire: 1415-1825 (London: Hutchinson & Co, 1969) at 2: "the peoples of the Iberian peninsula--and particularly the Portuguese--were peculiarly fitted to inaugurate the series of maritime and geographical discoveries which changed the course of world history."
(224.) Fernandez-Armesto, supra note 216 at 30. Hendrik Brouwer, a master of the Dutch United East India Company, later a governor-general, discovered a westerly route that would carry ships even more swiftly across the Indian Ocean to the Indonesian Archipelago; this route avoided the east coast of Africa and Madagascar, which da Gama and former trading companies had hugged. Faster, cooler, and less addled by pirates, the 'Brouwer route' became the mandatory route of the Dutch East India Company in 1616. See Els M lacobs, In Pursuit of Pepper and Tea: The Story of the Dutch East India Company (Amsterdam: Netherlands Maritime Museum, 1991) at 58.
(225.) De Gama had the crucial help of a Gujarati Muslim pilot, whose services he enlisted on way to India from Malindi on the southeastern coast of Africa. See Charles Verlinden, "The Big Leap under Dom loao 0: From the Atlantic to the Indian Ocean," in Hattendorf, Maritime History, supra note 93 at 79-80.
(226.) Fernandez-Armesto, supra note 216 at 30.
(227.) Boxer, supra note 223 argues that the Dutch-Iberian struggle from 1600-1663 was "waged in four continents and on seven seas" and was "indubitably world-wide ... this seventeenth-century contest deserves to be called the First World War rather than the holocaust of 1914-18 which is commonly awarded that doubtful honour." See also Mancke, supra note 94 at 149, who notes the "new" development of European politicization and militarization of the world's oceans between 1450-1800.
(228.) See Richard W Unger, "Politics, Religion and the Economy of Renaissance Europe," in Maritime History as World History, supra note 94 at 5, discussing the perils of overland trade from Asia following the breakdown of Mongolian authority over Central Asian routes to the Black Sea
(229.) David S Kelly, "Genoa and Venice: An Early Commercial Rivalry" in William R. Thompson, eds, Great Power Rivalries (Columbia: University of South Carolina Press, 1999) 125 (discussing the periods of Venetian-Genoese warfare beginning in 1205 and ending in 1381 with the Venetian victory at Chioggia); see also Fernand Braudel & Sian Reynolds (Translator), Civilization & Capitalism 15th-18th Century (The Perspective of the World), vol 3 (New York: Harper & Row, 1984) at 125-126 [3 Braudel],
(230.) See generally Steven Runciman, The Fall of Constantinople 1453, (UK: Cambridge University Press, 1990).
(231.) 3 Braudel, supra note 229 at 137.
(232.) John E Dotson, "Foundations of Venetian Naval Strategy from Pietro II Orseolo to the Battle of Zonchio 1000-1500" (2001) 32 Viator 113 at 123.
(233.) 3 Braudel, supra note 229 at 137 (noting also the relationship between the Turkish empire and the West "was a classic example of 'complementary enemies': everthing separated them, but vital interests forced them to coexist").
(234.) See Mancke, supra note 97 at 228.
(235.) Ibid. See also Panikkar, supra note 215 at 13, arguing that a major strand of the Vasco da Gama "epoch" following his arrival at the port of Calicut, India in 1498, was the European desire to "crusade against Islam and a strategic outflanking of Muslim power" that was motivated originally by desire for the monopoly of the spice trade. See also Lawson, supra note 222 at 7-8, discussing, the English merchant community's predicament vis-a-vis Portuguese and Spanish closures of trade routes.
(236.) Immanuel Wallerstein, The Modern World-System: Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century, with a neio prologue, Vol. 1 (Los Angeles: University of California Press, 2011) at 13.
(237.) Mercantilism reigned supreme as the predominant economic practice at this time. Market impediments in the pepper trade led the Dutch to conclude in 1599 that free competition increased prices to the point of rendering trade unremunerative. By 1602, the Dutch government oversaw the consolidation of various trading companies, leading to the creation of the Dutch United East India Company. See Alan K Smith, Creating a World Economy: Merchant Capital, Colonialism, and World Trade, 1400-1825 (Boulder: Westview Press, 1991) at 105. Elizabethan England depended heavily on imports of pepper from the Dutch but had little to trade in exchange for the commodity, causing exports of 'specie' in violation of controlling mercantile economic thought. When Holland increased the price of pepper in 1599 from 3s to 8s per pound in England, British merchants, under Queen Elizabeth's Charter of the English East India Company, decided to outflank the Dutch monopoly and enter the Eastern trade themselves: Panikkar, supra note 215 at 49-50. This decision cast two emerging seaborne empires on a collision course, which would prompt two Anglo-Dutch colonial conferences in 1613 and 1615, and which would account for the viciousness of three Anglo-Dutch wars over the course of one generation (1650-1680): Reynolds, supra note 109 at 44.
(238.) Hale, supra note 213 at 11.
(239.) 3 Braudel, supra note 229 at 125.
(240.) Hale, supra note 213 at 11.
(241.) Victor Lieberman, Strange Parallels, Vol. 2: Mainland Mirrors: Europe, Japan, China, South Asia, and the Islands (Cambridge University Press, 2009) 863 [Lieberman, Strange Parallels],
(242.) D\y Davies, A Primer of Dutch Seventeenth Century Overseas Trade 2,1st ed (Netherlands: Niijhoff, 1961) [DW Davies, A Primer of Dutch Seventeenth Century Overseas Trade 2],
(243.) Ibid at 1.
(244.) Jan de Vries, The Economy of Europe in an Age of Crisis, 1600-1750 (Cambridge University Press, 1976) at 117 [de Vries], See also 3 Braudel, supra note 229 at 190-193.
(245.) Janzen, supra note 212 at 103.
(246.) de Vries, supra note 244 at 118.
(247.) Israel, supra note 148 at 12.
(248.) 3 Braudel, supra note 229 at 190.
(249.) DW Davies, A Primer of Dutch Seventeenth Century Overseas Trade 1, 1st ed (The Netherlands: Niijhoff, 1961) [DW Davies, A Primer of Dutch Seventeenth Century Overseas Trade 1].
(250.) M at 1-2. See also Kristof Glamann, Dutch-Asiatic Trade 1620-1740 (The Netherlands: Niijhoff, 1958). For a discussion of the Dutch creation of a profitable intra-Asian trade network, see Femme S Gaastra, War, Competition and Collaboration: Relations between the English and Dutch East India Company in the Seventeenth and Eighteenth Centuries in The Worlds of the East India Company 51, HV Bowen, Margarette Lincoln and Nigel Rigby eds. (The Boydell Press, 2002) [Femme S Gaastra]; and Lieberman, Strange Parallels, supra note 241 at 841ff.
(251.) DW Davies, A Primer of Dutch Sei>enteenth Century Overseas Trade 1, supra note 249 at 2.
(252.) 3 Braudel, supra note 229 at 35, 125.
(253.) Israel, supra note 148 at 67.
(254.) The Dutch East India Company was founded in 1602 following the consolidation of six smaller Dutch trading companies that had been trading in Asia since 1594. See Gaastra, supra note 250 at 50.
(255) Stephen R. Brown, Merchant Kings: When Companies Ruled the World, 1600-1900, (St. Martin's Press, 2009) at 16.
(256) There is some dispute as to who exactly commissioned the work from Grotius but Borschberg notes "It is now an academic commonplace to treat ... De iure praedae ... as a commissioned response to the seizure of the Portuguese-flagged carrack." See Peter Borschberg, "Grotius, Maritime Intra-Asian Trade and Portuguese Estado da india: Problems, Perspectives and Insights from De iure praedae" in Blom, supra note 162 at 32.
(257) Gordon, supra note 117 at 255.
(259) Israel, supra note 148 at 68-69.
(260) Ibid at 71.
(261) Pratap Chatterjee, Halliburton's Army: How a Well-Connected Texas Oil Company Revolutionized the Way America Makes War (New York: Nation Books, 2009); PW Singer, "Outsourcing War" (2005) 82(2) Foreign Aff at 119; Larry W Isaac and Daniel M Harrison, "Corporate Warriors: The State and Changing Forms of Private Armed Force in America" (2006) 24 Current Perspectives in Social Theory, 153-188. See also Michael N Schmitt, "Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees" (2005) 5 Chi J Int'l L at 511.
(262) Curtin, supra note 209 at 153.
(263.) Vieira, supra note 54 at 361.
(264.) Israel, supra note 148 at 73.
(265.) Panikkar, supra note 215 at 47-59.
(266.) Lieberman, Strange Parallels, supra note 241 at 845-857 (noting VOC influence on the five major coastal realms of Ache, Hohor, Ban ten, Makasar, and Maluku, and on the interior Javanese empire of Mataram).
(267.) See Fruin, supra note 100 at 13 (contending the seizure was "the most direct cause" of writing De Jure Praedae Commentarius).
(268.) Fruin notes that the proceedings of the condemnation hearing were lost in a fire at the Ministry of the Navy, save for some minutes. Ibid at 23-24.
(269.) CR Boxer, Fidalgos in the Far East 1550-1770, at 50-51 (1968). See also Martine Julia Van Ittersum, "Hugo Grotius in Context: Van Heemskerck's Capture of the Santa Catarina and its Justification in De Jure Praedae Commentarius (1604-1606)" (2003) 31:3 Asian Journal of Social Science 511 at 511.
(270.) Boxer, supra note 269 at 50-51.
(271.) Fruin, supra note 100 at 22-23.
(272.) Ibid at 18, 29-30.
(273.) For discussions of Dutch dominance over Asian markets, dated between 1602-1684, see Gaastra, supra note 250 at 50-55. See also Lieberman, Strange Parallels, supra note 241 at 857-868.
(274.) Gaastra, supra note 250 at 52. See generally Stephen R. Brown, Merchant Kings: When Companies Ruled the World, 1600-1900, supra note 255.
(275.) Lieberman, Strange Parallels, supra note 241 at 865.
(276.) Van Ittersum, supra note 107 at 9 fn 8.
(277.) See Boxer, supra note 269 at 49. Twenty Dutchmen were actually captured at Macao, but two were released because of their young age, as was the ship's Factor [legal counselor/agent).
(278.) Fruin, supra note 100 at 15-17.
(279.) See Israel, supra note 148 at 72.
(280.) Ibid at 69. In addition to the twelve seats allocated to Holland and Zeeland, two seats each went to the North Quarter and South Holland chambers (departments). The last seat on the board went to a member nominated in rotation by Zeeland, the North Quarter, and South Holland: ibid at 69-70. The Holland and Zeeland chambers raised the lion's share of capital, about 5 million guilders of the 6.5 million initially deposited (with the Holland chamber accounting for 3.7 million guilders and the Zeeland chamber contributing 1.3 million guilders). Other chambers formed in Rotterdam, Delft, Hoorn and Enkhuizen.
(281.) The VOC did begin issuing dividends following the first few years of its existence. lacobs, supra note 224 at 17. It paid out more than 230 million guilders during its two centuries of existence. Ibid at 16. The company averaged about a 20 percent annual return for Dutch investors between 1605-1620. See Douglas A Irwin, "Mercantilism as Strategic Trade Policy: The Anglo-Dutch Rivalry for the East India Trade" (1991) 99:61 Pol Economy 1296 at 1320.
(282.) VOC directors, when in need of additional capital, would issue advances against future earnings or take out short term loans. It was a practice that would continue over the course of the VOC's existence. See lacobs, supra note 224 at 15.
(283.) Ibid at 17.
(284.) Van Ittersum, supra note 107 at 151.
(285.) Israel, supra note 148 at 72.
(286.) Supra note 107 at 153.
(287.) Edward Dumbauld, The Life and Legal Writings of Hugo Grotius (Norman: University of Oklahoma Press, 1969) at 29-30.
(288.) Gellinek, supra note 11 at 98.
(289.) Supra note 107 at 153. See also Fruin, supra note 100 at 33 (noting Lijntgens headed one of the great commercial houses in Amsterdam and had invested more than one ton gold in the company).
(290.) CR Boxer, The Dutch Seaborne Empire, 1600-1800 (London: Hutchinson, 1965) at 129.
(291.) Jonathan I Israel, "Toleration in Seventeenth-Century Dutch and English Thought" in Jonathan I Israel, ed, Conflicts of Empires: Spain, the Lcnv Countries and the Struggle for World Supremacy 1585-1713 (London: Hambledon Press, 1997) 241 at 253.
(292.) Ibid at 252. Indeed, Grotius was well known in his century for this contribution on Christian truth, not for De Jure Belli ac Pads, as many now retrospectively tend to believe. See Antonio Cassese, "The Martens Clause: Half a Loaf or Simply Pie in the Sky?" 11:1 Eur J Int'l L (2000) 187, at 200 (referencing the great Dutch historian Johan Huizinga's essay, "Grotius' Plaats in de Geschiedenis van den Manschelijken Geest").
(293.) Supra note 291 at 253.
(294.) Hugo Grotius, De lure Praedae Commentarius translated by Gwladys L Williams and Walter H Zeydel (Oxford: Clarendon Press, 1950) vol 1 at 2.
(295.) Ibid at 1.
(298.) Ibid at 2.
(299.) Ibid at 3.
(300.) Dumbauld, supra note 287 at 26. But cf. Van Ittersum, supra note 107 at 153, who notes that, despite his Mennonite pacifism and Anabaptist scruples, Pieter Lijntgens nevertheless served as an agent to purchase guns and ammunition for Zeeland voyages to the East Indies.
(301.) Israel, supra note 148 at 72.
(303.) Van Ittersum notes two disaffected shareholders in particular, the Flemish emigree merchants Balthasar de Moucheron and Isaac le Maire; both resigned their VOC directorships and "became involved in attempts to create a French East India Company... ". See Van Ittersum, supra note 107 at 151.
(304.) Israel, supra note 148 at 72.
(305.) Fruin, supra note 100 at 34 (noting French mariners' lack of seafaring knowledge of Indo-Asian waters at this time).
(306.) In 1600, under the auspices of the Lord Mayor of London, London merchants and their British political allies decided to establish their own trading company in the East, in view of Dutch intentions to do the same. By Royal Charter, Queen Elizabeth established the company in the same year; it became known as the British East India Company, which functioned well into the nineteenth century. See generally Lawson, supra note 222.
(307.) See Israel, supra note 148 at 72. See also Van Ittersum, supra note 107 at 153 (noting: "Oldenbarnevelt wrote one letter after another to the French monarch in order to warn him against the nefarious schemes of "Anabaptists and libertines," and even suggested that the projected establishment of a French East India Company was part of a Spanish conspiracy...);" and Fruin, supra note 100 at 34 (concluding Lijntgen's plan "threatened to become a dangerous rival of the Dutch Company"); and at 35 (noting Oldenbarnevelt "combatted the scheme" with all means of statecraft at his service).
(308.) Israel, supra note 148 at 72.
(310.) See Roelofsen, supra note 206 at 9-10.
(311.) Vervliet, supra note 10 at xiv (not until 1864, when Grotius' heirs put his papers up for auction at The Hague, did it become apparent that Mare Liberum was but one chapter of a much larger manuscript written in defense of Dutch colonial interests. Historian Robert Fruin made the connection, Leiden University purchased the manuscript, and the long dormant larger work was finally published in 1868 as De Jure Praedae Commentarius. The full title of the tract, De Jure Praedae Commentarius, ex auctoris codice descripsit et vulgavit, was the title given to the work by its first editor, HG Hamaker; Grotius, however, usually referred to the work as De rebus Indicis --On the Affairs of the Indies. See ibid at xiv. See also Armitage, supra note 13 at xiii; and Martine Julia Van Ittersum, "Preparing Mare liberum for the Press: Hugo Grotius' Rewriting of Chapter 12 of De lure Pradae in November-December, 1608" (2005-2007) 26-28 Grotiana 246. Much has been written about the importance of the Commentarius, but not enough has been written about the fact that Grotius never published the work).
(312.) Mare Liberum, supra note 1 at 64 and 151.
(313.) Van Ittersum, "Hugo Grotius in Context", supra note 269 at 514, 535 (Van Ittersum also notes that following the carrack's capture, it was Van Heemskerck who rewarded the Sultan, not the other way around at 541).
(314.) Borschberg, Hugo Grotius, supra note 108 at 86.
(315.) See Martti Koskenniemi, "Empire and International Law: the real Spanish contribution" (2011) 61:1 UTLJ 1 at 32.
(316.) Oliver lutersonke & Rolf Schwarz, "Slicing up the cake: divisible sovereignty in the pre and post-Westphalian order" EISA (12 September 2007) at 4, online: <http://www.eisa-net.org/ be-bruga/eisa/files/events/turin/Schwarz-divsov_and_westphalian_order.pdf>.
(317.) Supra note 194.
(318.) Van Ittersum, Profit and Principle, supra note 107 at 29.
(319.) Bernard H Oxman, "The Territorial Temptation: A Siren Song at Sea" (2006) 100:4 Am ] Int'l L 830 at 830.
(320.) See Roelofsen, supra note 206 at 5 and 6.
(321.) Boxer, The Dutch Seaborne Empire, supra note 290 at 102.
(323.) Roelofsen, supra note 206 at 5.
(324.) peter Borschberg, "Hugo Grotius' Theory of Trans-Oceanic Trade Regulation, Revisiting Mare Liberum (1609)" International Law and Justice Working Papers at 9 (New York University School of Law, Rev. Aug. 2006) (referencing De Jure Praedae Commentarius), available at http://papers.ssrn. com/sol3/papers.cfm?abstract_id=871752.
(325.) Supra note 107 at 488.
(327.) See supra note 269 at 512-513 (citing fifteen notarized attestations put together by the VOC and sent to Grotius in 1604).
(328.) Ibid at 511.
(329.) With apologies to the Bard, who was actually referring to a custom that is more honorably ignored than observed, not one that is more often ignored. See William Shakespeare, Hamlet, Reprint (London: Arnold, 1963) at act 1, scene iv. See also Philip B Corbett, Mangled Shakespeare, N.Y. Times, 17 Jan. 2012, online: http://afterdeadline.blogs.nytimes.com/2012/01/17/ mangled-shakespeare/?_php=true&_type=blogs&_r=0.
(330.) See generally supra note 107 at ch. 2 (discussing the so-called Spanish Black Legend regarding the conquistadores' treatment of aborigines in the New World).
(331.) See supra note 194.
(332.) Sixteenth century Spanish colonial policy, chiefly through the writings of scholastic friar, Francisco de Vitoria, held that aboriginies 'discovered' in the New World were endowed with rational capacity and free will. Consequently the pope's exercise of universal temporal authority over the inhabitants, through his agent, the Spanish crown, hinged on the legal 'requirement' that aborigines consent to and acknowledge the universal temporal authority of the pope, who had granted dominium to the Spanish crown. Failure to consent to the Requerimiento provided the Spanish conquerors with a right to determine and resort to extreme measures. See Rossi, Broken Chain of Being, supra note 173, at 121-125.
(333.) Supra note 90 at 60.
(334.) Hugo Grotius, De lure Praedae Commentarius [The Law of Prize and Booty], translated by GL Williams (Oxford: Clarendon Press, 1950) at 1.
(335.) Michael Kempe, "Beyond the Law. The Image of Piracy in the Legal Writings of Hugo Grotius" (2007) 26:1 Grotiana 379 at 385.
(336.) DP O'Connell, The International Law of the Sea, ed by IA Shearer (Oxford: Clarendon Press, 1982) vol 1 at 476 (writing in relation to a coastal state's inherent and primordial rights over the continental shelf).
(337.) Oxman, supra note 319 at 830.
(338.) Lea Brilmayer & Natalie Klein, "Land and Sea: two sovereignty regimes in search of a common denominator" (2001) 33:3 NYUJ Int'l L & Pol 703 at 703-4.
(340.) Oxman, supra note 319 at 830.
(341.) See generally Giuseppe Nesi, "Uti possidetis iuris e delimitazioni marittime" (1991) 74 Rivista di diritto internazionale 534; and Christopher R. Rossi, "The Northern Sea Route and the Seaward Extension of Uti Possidetis (Juris)" (2014) Nordic J Int'l L 476.
(342.) Proclamation No. 2667, 28 September 1945, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 13 Dep't St. Bull., 485 (1945); 59 Stat. 884.
(343.) LDM Nelson, "The Patrimonial Sea" (1973) 22:4 Int'l & Comp LQ 668 at 669.
(344.) Christopher R Rossi, Equity and International Law: A Legal Realist Approach to International Decisionmaking (Irvington, NY: Transnational, 1993) at 205 [Equity and International Law].
(345.) See generally Convention on the Continental Shelf, 29 April 1958, 499 UNTS 311, TIAS No 5578, 15 UST 471.
(346.) Three other conventions were produced at the First United Nations Conference on the Law of the Sea. See Convention on the Territorial Sea and Contiguous Zone, 29 April 1958,516 UNTS 205, 15 UST 1606; Convention on the High Seas, 29 April 1958, 450 UNTS 11,13 UST 2312; Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 559 UNTS 285, 17 UST 138; Optional Protocol of Signature Concerning the Compulsory Settlement of Dispute, 29 April 1958, 450 UNTS 169.
(347.) See UNCLOSOR, 1958, lst-21st Plen Mtgs, UN Doc A/CONF.13/38 (Sales No# 58 V. 4, Vol. II). A second conference was convened in 1960 to address the breadth of the territorial sea, which had been left unresolved by the the first conference, but it also failed to resolve the issue. See UNGAOR, 15th Sess., UN Doc A/CONF.19/C.1/L.9 (1960). A third conference resolved the issue of the breadth of the territorial sea and numerous other issues but gave rise to new considerations, particularly the exclusive economic zone, infra, which now presents major considerations relating to attempts claim sovereign rights over the seas. See UNCLOSOR, 11th Sess, UN Doc A/CONF.62/121 (1982).
(348.) It should be noted that the League of Nations attempted with the 1930 Hague Law of the Sea Conference to begin the codification process but the successful conclusion of the four Geneva Conventions mark for many the starting point for discussions.
(349.) "Chapter IV: Revised Draft Articles on the Continental Shelf and Related Subjects" (UN Doc A/CN.4/60) in Yearbook of the International Law Commission 1953, vol 1 (New York: UN, 1959) 73 at 77 (UNDOC.A/CN.4/SER. A/1953) (comment of Mr. Zourek).
(350.) See Fisheries Case (United Kingdom v. Nonvay)  ICJ Rep 116; Fisheries jurisdiction Case (United Kingdom v Iceland)  ICI Rep 3; Fisheries jurisdiction Case (Federal Republic of Germany v Iceland)  ICI Rep 175.
(351.) The generally accepted view is that the three-mile territorial sea developed from the 'cannonshot' rule, most famously articulated but not conceived of by Dutch publicist Cornelius van Bynkershoek (1673-1743) in 1709. That delimitation hardened as a compromise between DanishNorwegian and later Swedish four-mile claims to a neutral belt and Mediterranean countries' claim, along with Holland's, to a three-mile zone, later enforced by the cannon shot rule, to guard neutral states from quarrels of warring powers. See generally HSK Kent, "The Historical Origins of the Three-Mile Limit" (1954), 48 Am J Int'l L 537.
(352.) See UNCLOS, supra note 18 arts 2-8.
(353.) See ibid at art 33.
(354.) Ibid at art 33 (2). For a discussion of the historical development of the contiguous zone, see Shigeru Oda, "The Concept of the Contiguous Zone" (1962) 11:1 Int'l & Comp LQ 131.
(355.) Geneva Convention on the Continental Shelf, April 29,1958,15 UST at 473 art 2, 499 UNTS at 314; UNCLOS, supra note 18 at pt VI, art 77.
(356.) Brilmayer & Klein, supra note 338 (noting the ab initio doctrine conferred title from the outset and did not require any actions by the coastal state to perfect it, at 710).
(357.) Case Concerning the Continental Shelf (Tunis v Libyan Arab Jamahiriya), "Separate Opinion of Judge Jimenez de Arechaga" (24 February 1982), ICJ Rep 123.
(358.) North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark, Federal Republic of Germany v the Netherlands), [20 February 1969] ICJ Rep 30 at 39. See also Wolfgang Friedmann, "The North Sea Continental Shelf Cases-A Critique" (1970), 64 Am ] lnt'1 L 229, 232 (noting the ICJ's brief, almost casual, recognition of coastal state authority over the continental shelf independent of the 1958 Conventions). See also Aegean Sea Continental Shelf (Greece v Turkey), [19 December 1978] ICI Rep 3 at 36.
(359.) Brilmayer & Klein, supra note 338 at 713.
(360.) Chile, Peru, Costa Rica, and El Salvador laid claim to Patrimonial Seas by decree in 1947 and 1948; Argentina's decree of an Epicontinental Sea, which asserted sovereign rights, was claimed in 1946. The movement congealed around the Declaration of Santiago of 18 August 1952. See Nelson, supra note 343 at 669-670. Other Latin American states joined in endorsement of the 200-mile territorial sea with the Montex'ideo Declaration on the Laxo of the Sea, 8 May 1970, UN Doc. A/AC 138/34.
(361.) Zouhair A Kronfol, "The Exclusive Economic Zone: A Critique of Contemporary Law of the Sea" (1977) 91 Mar L & Com 461 at 463.
(362.) UNCLOS, supra note 18 pt VU, arts 86-90.
(363.) Ibid, supra note 18, arts 56-57.
(364.) Brilmayer & Klein, supra note 338 at 723.
(365.) Oxman, supra note 319 at 839.
(366.) The establishment of the EEZ is substantively distinct from sovereign claims to the territorial sea. As Oxman has noted, "what really separates the EEZ from the territorial sea is that the former embraces freedom of navigation, overflight, and communications, and is not in principle subject to comprehensive coastal state jurisdiction, while the latter is subject to comprehensive coastal state jurisdiction and, outside of straits, includes only a very limited, and suspendable, right of innocent passage that is subject to both important qualifications and unilateral coastal state regulation." Oxman, supra note 319 at 839. Innocent passage refers to the right of all states to navigate through the territorial sea so long as passage is continuous, expeditious and not prejudicial to the peace. See UNCLOS, supra note 18, pt O, arts 17-19.
(367.) James Kraska, "International Law and the Future of Indian Ocean Security" in lohn Garofano & Andrea J Dew, eds, Deep Currents and Rising Tides: The Indian Ocean and International Security (Washington: Georgetown University Press, 2013) 213 at 224.
(368.) John R Stevenson, "Speech by US representative to the Second Session of UNCLOS III" (11 July 1974) 71 Dep't St Bull 232 at 233. See also M Nordquist & C Park, eds, Reports of the United States Delegation to the Third United Nations Conference on the Law of the Sea (Honolulu: Law of the Sea Institute, 1983).
(369.) See generally Rossi, Equity and International Law, supra note 344 at 195-204 (noting the rise of the Group of 77, the New International Economic Order, the UNCTAD movement and the debate on permanent sovereignty over natural resources).
(370.) See UNCLOS, supra note 18 pt XI, arts 136-137 (establishing an International Seabed Authority to regulate the exploration and exploitation of the resources of the "Area"--denoting the seabed, ocean floor, and subsoil thereof beyond the limits of national jurisdiction -in accordance with the Common Heritage of Mankind principle). See generally Hugo Caminos & Michael R Molitor, "Progressive Development of International Law and the Package Deal" (1985) 79:4 Am J Int'l L 871. See also Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the limits of National Jurisdiction, GA Res 2749, UNGAOR, 25th Sess, (1970) at para 1.
(371.) Ronald Reagan, Statement on United States Oceans Policy (10 March 1983) online: <http://www. reagan.utexas.edu/archives/speeches/1983/31083c.htm>.
(372.) UNCLOS, supra note 18, pt III, arts 37-44. See John Norton Moore, "Regime of Straits and the Third United Nations Conference on the Law of the Sea," (1980) 74 Am J Int'l L 71 at 100, (noting that both the United States and the Soviet Union "repeatedly made clear that they could not accept a law of the sea treaty that did not provide for freedom of navigation through straits").
(373.) See Wolfgang Friedmann, "Selden Redivivus: Towards a Partition of the Seas?" (1971) 65 Am J Int'l L 757 at 763; Hubert Thierry, "The Thought of Georges Scelle" (1990) 1 Eur J Int'l L 193 at 207-08; RY Jennings, "A Changing International Law of the Sea" (1972) 3:1 Cambridge LJ 32 at 34; Cecil Hurst, "The Continental Shelf" (1948) 34 Transactions of the Grotius Society 153; H Lauterpacht, "Sovereignty Over Submarine Areas" (1950) 27 Brit YB Int'l L 376. See also Nelson, supra note 343 at 669ff.
(374.) Hurst, supra note 377 (interpreting the distinction between the Truman Proclamation's exercise of exclusive control and sovereignty as "so small as to be little more than a question of name" at 161).
(375.) Oxman, supra note 319 at 832.
(376.) The "High Arctic" region is a term used to distinguish the colder climates of the Arctic, which are closer to the North Pole, than the relatively warmer environs of the lower or subarctic regions. Definitions of the Arctic region differ, but not materially for purposes of this paper. The Arctic Research and Policy Act (ARPA), 15 USC Title I of PL 1984, Section 112 [section] 4111 defines the Arctic as "all United States and foreign territory north of the Arctic Circle and all United States territory north and west of the boundary formed by the Porcupine, Yukon, and Kuskokwim Rivers [in Alaska]; all contiguous seas, including the Arctic Ocean and the Beaufort, Bering, and Chukchi Seas; and the Aleutian chain." A helpful map of this area can be found at: Allison Gaylord, "Arctic Boundary as defined by the Arctic Research and Policy Act (ARPA)" USARC--United States Arctic Research Commission (27 May 2009) online: USARC-United States Arctic Research Commission <http://www.arctic.gov/publications/maps/ARPA_Polar_150dpi.jpg>. For the definition and map of the Arctic used by a working group of the Arctic Council, the eight member group formed in 1996 for purposes of promoting cooperation in the region, adopted by the Arctic Monitoring and Assessment Programme (AMAP), see "Geographical Coverage" AMPAP, online: AMAP <http://www.amap.no/about/geographical-coverage>.
(377.) Shackelford, Supra note 88 at 2.
(378.) According to the U.S. National Snow & Ice Data Center, Arctic sea ice typically covers fourteen to sixteen million square kilometers in late winter. Satellite data accumulated since 1972 suggests that Arctic ice has decreased by an average rate of three percent per decade, with more dramatic reductions apparent beginning in September 2002, leading to average current estimates that Arctic sea ice is decreasing at a rate of 7.7 percent per decade. "Environment: Trends" National Snoxv and Ice Data Center, online: National Snow and Ice Data Center <http://nsidc.org/ cryosphere/seaice/environment/trends.html>.
(379.) National Strategy for the Arctic Region, supra note 35 at 5 (citing U.S. Geological Survey fact sheet, 2008).
(380.) "Submissions, through the Secretary-General of the United Nations, to the Commission on the Limits of the Continental Shelf, pursuant to article 76, paragraph 8, of the United Nations Convention on the Law of the Sea of 10 December 1982" United Nations--Oceans & Laxe of the Sea (updated 24 April 2014), online: United Nations <http://www.un.org/depts/los/clcs_new/ commission_submissions.htm>. The Canadian Foreign Ministry estimates that eighty-five countries have an extended continental shelf claim. See "Canada's Extended Continental Shelf" Foreign Affairs, Trade and Development Canada (9 December 2013), online: Department of Foreign Affairs, Trade and Development Canada <http://www.international.gc.ca/arctic-arctique/ continental/index.aspx?lang=eng>.
(381.) See UNCLOS, supra note 18, pt VI, art 76(8).
(382.) See ibid at pt XI, arts 156-158.
(383.) Jasper A Bovenberg, "Mining the Common Heritage for Our DNA: Lessons Learned from Grotius and Pardo" (2006) 8 Duke L & Tech Rev at 29, online: Duke L & Tech Rev <http:// scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1154&context=dltr>. Importantly, the United States still refuses to ratify the treaty, notwithstanding six main revisions. See "UN: Agreement Relating to the implementation of Part XI of UNCLOS--Content Summary" (1994) 33 ILM at 1309.
(384.) Shackelford, Supra note 88 at 26-27.
(385.) For a discussion on the problems and prospects of proprietary interests in enclosing portions of outer space, including the geostationary and low earth orbits see, for example, Shane Chaddha, "Hardin Goes to Outer Space--'Space Enclosure'" SSRN (8 February 2011), online: SSRN <http://ssrn.com/abstract=1757903>; and Ole Varmer, "The Third World's Search for Equitable Access to the Geostationary Satellite Orbit" (1987) 6ILSA J Int'l L at 175. Noting, with qualification, the concept of the common heritage of mankind is here to stay, see Graham Nicholson, "The Common Heritage of Mankind and Mining: An Analysis of the Law as to the High Seas, Outer Space, the Antarctic and World Heritage" (2002) 6 NZ J Envtl L 177 at 197.
(386.) See Shackelford, Supra note 88 at 25 and 30ff.
(387.) Ibid at 4.
(388.) "Law of the Sea - Outer Limits of the US Continental Margins" USGS (1 December 2011), online: USGS <http://walrus.wr.usgs.g0v/research/pr0jects/law0fsea.html#0verview>.
(389.) A Danish study cited by Russia's Ambassador-at-Large to the Arctic Council, claims that up to 97 percent of proven resources are located within EEZs of Arctic States, suggesting the 'race' to recover resources is mostly moot because "there's nothing to divide, everything has been already divided." Anton Vasiliev, "The Arctic, our home and future" Arctic Info, online: <http:// www.arctic-info.com/ExpertOpinion/Page/the-arctic-our-home-and-future>.
(390.) See Philip Allot, "Power Sharing in the Law of the Sea" (1983) 77:1 Am J Int'l L at 14.
(391.) Ron Macnab, "Submarine Elevations and Ridges: Wild Cards in the Poker Game of UNCLOS Article 76" (2008) 39:2 Ocean Dev. & Int'l L at 223-234.
(392.) See Allot, supra note 390 at 17-18. See also Vladimir Jares, "The Continental Shelf Beyond 200 Nautical Miles: The Work of the Commission on the Limits of the Continental Shelf and the Arctic" (2009) 42 Vand J Transnat'l L 1265, 1272-1276; and John E Noyes, "Judicial and Arbitral Proceedings and the Outer Limits of the Continental Shelf" (2009) 42 Vand J Transnat'l L 1211 at 1227.
(393.) Ron Macnab, "The Case for Transparency in the Delimitation of the Outer Continental Shelf in Accordance with UNCLOS Article 76" (2004) 35:1 Ocean Dev & Int'l L 1 at 10.
(394.) Timo Koivurova, "The Actions of the Arctic States Respecting the Continental Shelf: A Reflective Essay" (2011) 42:3 Ocean Dev. & Int'l L 211 at 221.
(398.) Ibid at 218.
(399.) Depending on the scientific evidence, the outer limits to the continental shelf may be drawn at 200 nautical miles, at the outer edge of the continental margin, at 350 nautical miles, which is the general cut off point established in article 75(5), or at 100 miles from the 2,500-meter isobath. See Allot supra note 390 at 18.
(400.) The criteria include consideration of natural prolongation, the continental margin, determination of the outer edge of the continental margin, consideration of the continental slope, and analysis of submarine ridges. See ibid, supra note 390 at 17-18.
(401.) Macnab, supra note 393 at 1.
(402.) Established according to Article 76 of UNCLOS, and its Annex II, the CLCS shall consider information submitted by the coastal state and make recommendations on the establishment of the outer limits. See UNCLOS, supra note 18, art 76(8) and art 3(1)(1) of Annex II. See also Macnab, supra note 393 at 11.
(403.) Shackelford, Supra note 88 at 23. See also Michael Sheng-ti Gau, "The Commission on the Limits of the Continental Shelf as a Mechanism to Prevent Encroachment upon the Area" (2011) 10 Chinese J Int'l L at 3,6 (noting that existing international rules and mechanisms cannot sufficiently address the problem of coastal state encroachment).
(404.) This outcome appears likely if circumpolar states maximize the extent to which the outer limits can be measured. See Mel Weber, "Defining the Outer Limits of the Continental Shelf across the Arctic Basin: The Russian Submission, States' Rights, Boundary Delimitation and Arctic Regional Cooperation" 24 Int'l J Marine & Coastal L (2009) 653 at 656-657; Shackelford assertively claims "eventually the entire Arctic Ocean [continental shelf] save for a one hundred square-mile area around the North Pole" will fall under national jurisdiction, supra note 88 at 3; 0ystein Jensen estimates that a maximum measurement of outer continental shelf would leave "only two relatively small enclaves" as part of the international seabed area: the Gakkel Ridge and a smaller seabed area in the Canadian Basin. Oystein Jensen, "Limits of the Continental Shelf in the Arctic Ocean," 2:4 ESIL Reflections (25 April 2013) at 2, online: <http://www.esil-sedi. eu/sites/default/files/Jensen%20-%20ESIL%20Reflection.pdf>.
(405.) Paul Reynolds, "Russia ahead in Arctic 'gold rush'" BBC News Special Reports (1 August 2007), online: BBC News <http://news.bbc.co.Uk/2/hi/6925853.stm>.
(406.) Colin Sullivan, "Is the U.S. Napping Through the Arctic Thaw?" National Tribal Air Association (13 March 2012), online: National Tribal Air Association <http://www. ntaatribalair.org/index.php?option=com_content&view=article&id=1309:jeny&catid=24:c limate-change> (noting Denmark "is expected to file a claim that the Lomonosov Ridge is a natural prolongation of Greenland"). For a map and discussion of overlapping Danish, Canadian, and Russian claims involving the Lomonosov Ridge, see "Territorial Claims" The Right Arctic, online: The Right Arctic <http://arcticcontroversy.weebly.com/territorialclaims.html>, and "Evolution of Arctic Territorial Claims and Agreements: A Timeline (1903-Present)" Stimson (15 April 2013), online: Stimson <http://www.stimson.org/infographics/ evolution-of-arctic-territorial-claims-and-agreements-a-timeline-1903-present/>.
(407.) See John Abrahmason, "Joint Development of Arctic Ocean Oil and Gas Resources and the United Nations Convention on the Law of the Sea" in International Boundaries Research Unit Conference--The State of Sovereignty (Durham: Durham University, 2009), slide 41 online: <https:// www.dur.ac.uk/resources/ibru/conferences/sos/john_abrahamson_powerpoint.pdf>.
(408.) National Strategy for the Arctic Region, supra note 35 at 9; see also "ECS Data Management--US Extended Continental Shelf Project" National Oceanic and Atmospheric Administration (NOAA) National Geophysical Data Center, online: National Oceanic and Atmospheric Administration (NOAA) National Geophysical Data Center <http://www.ngdc.noaa.gov/mgg/ecs/>.
(409.) See David J Bederman, "The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS" (2008) 49 Harv Int'l L J, 21 at 25.
(410.) "Canada's Northern Strategy: Our North, Our Heritage, Our Future" Ministry of Indian Affairs and Northern Development and Federal Interlocutor for Metis and Non-Status Indians (2009), online: Canada's Northern Strategy <http://www.northernstrategy.gc.ca/cns/cns-eng.asp> (noting establishment of an Army Training Centre in Resolute Bay on the shore of the Northwest Passage and the "managed disagreements" between the United States and Canada regarding the maritime boundary in the Beaufort Sea and the legal status of the various waterways known as the Northwest Passage). See also Rob Huebert, "Climate Change and Canadian Sovereignty in the Northwest Passage" in Dr. John Ferris & P Whitney Lackenbauer, ed, Calgary Papers in Military and Strategic Studies (Calgary: Centre for Military and Strategic Studies, 2011 (Occasional Paper Number 4)), 383 at 385. Most important, the Canadian claim that the Northwest Passage constitutes internal waters renders inapplicable the conventional right of 'innocent passage'. See Donat Pharand, "The Arctic Waters and the Northwest Passage: A Final Revisit" (2007) 38:3 Ocean Dev & Int'l L 3 at 4.
(411.) United States, National Security Presidential Directive and Homeland Security Presidential Directive, NSPD-66/HSPD-25 (9 January 2009), online: National Security Presidential Directives--NSPDs <https://www.fas.org/irp/offdocs/nspd/nspd-66.htm> (declaring the Northwest Passage and the Northern Sea Routes as straits used for international navigation, to which the regime of transit passage applies through both). See also Huebert, supra note 410 at 388 (noting "the United States and the European Union position is that, contrary to Canadian claims, the Northwest Passage is an international strait").
(412.) The establishment of a Northwest Passage route would save 9000km (4,860 nautical miles) in travel distance over traditional routes between Europe and Asia via the Panama Canal; larger vessels unable to transit the Panama Canal would save 17,000 km (9,180 nautical miles) as opposed to rounding Cape Horn; use of a Northern Sea Route rather than transiting the Suez Canal could cut the transit distance between Germany and Japan from around 11,400 to 7,200 nautical miles. See Clive Schofield, "Cold Rush: Exploring Arctic Myths and Misconceptions", Current Intelligence - The Arctic (27 March 2013), online: Current Intelligence <http://www.currentintelligence.net/analysis/2013/3/27/cold-rush-exploring-arctic-myths-and misconceptions.html>.
(413.) See Ronald O'Rourke, "Changes in the Arctic: Background and Issues for Congress" Congressional Research Service (24 July 2013) at 16.
(414.) David Greene, "Russia Pushes to Claim Arctic As its Own" NPR Special Series (16 August 2011), online: NPR Special Series <http://www.npr.org/2011/08/16/139577789/ russia-pushes-to-claim-arctic-as-its-own>.
(415.) "Vladimir Putin signs law on the Northern Sea Route" Arctic Info (30 luly 2012), online: Arctic Info <http://www.arctic-info.com/News/Page/vladimir-putin-signs-law-on-the-northern-sea-route-> (defining the Northern Sea Route as the maritime delimitation line with the US and the parallel of Cape Dezhnev in the Bering Strait, and in the west - the meridian of the Cape of Desire to the Novaya Zemlya Archipelago, eastern shore of the Novaya Zemlya Archipelago, and the western boundaries of the Matochkin, Kara Gates and Yugorsky Shar Straits).
(416.) John Helmer, "Russia Intensifies Control Over Northern Sea Route Shipping, But Suez May Still Win" Business Insider (5 September 2013), online: Business Insider <http://www. businessinsider.com/russia-intensifies-control-over-shipping-route-2013-9>.
(417.) Costa Paris, "Ship Travels Arctic From China to Europe" The Wall Street Journal (19 August 2013), online: The Wall Street Journal <http://online.wsj.com/article/SB10001424127887323423804 579022982364681464.html>.
(418.) "Russia's Atomflot inks deal to build world's largest nuclear icebreaker" Bellona (24 August 2012), online: Bellona <http://www.bellona.org/articles/articles_2012/biggest_icebreaker>.
(419.) See "Arctic Ports" Northern Sea Route Information Office, online: Northern Sea Route Information Office <http://www.arctic-lio.com/arcticports> (the Russians are currently building the seventeenth Northern Sea Route port-city at Sabetta).
(420.) See Charles Emmerson, The Future History of the Arctic, (New York: Public Affairs, 2010) at 36-42 (noting Stalin's Arctic initiative to establish Glavsevmorput in 1932, the Soviet agency charged with the development of the Arctic as a commercial and military asset).
(421.) The United States and European Community object to Russia's claim of sovereignty over the Northern Sea Route.
(422.) See Ronald O'Rourke, "Changes in the Arctic: Background and Issues for Congress" Congressional Research Service (28 April 2014) 17 at 51, online: Congressional Research Service <http://www.fas.org/sgp/crs/misc/R41153.pdf>; and, "Amendments to Certain legislative Acts of the Russian Federation Concerning State Regulation of Merchant Shipping in the Area of the Northern Sea Route" President of Russia (28 July 2001, updated 30 July 2012), online: President of Russia <http://eng.kremlin.ru/news/4232> (defining the Northern Sea Route as encompassing Russia's internal waters).
(423.) "The Ilulissat Declaration" in Arctic Ocean Conference (Greenland, 27-29 May 2008), online: <http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf>.
(424.) See generally Waliul Hasanat, "Searching for Synergies in International Governance Systems in the Circumpolar North" (2013) 9:2 McGill Int'l J. Sust. Dev. L & Policy 5.
(425.) The 1996 Ottawa Declaration formally established the Arctic Council "to provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of the Arctic Indigenous communities and other Arctic inhabitants on common Arctic issues; in particular, issues of sustainable development and environmental protection in the Arctic," "History" The Arctic Council (27 April 2011), online: The Arctic Council <http://www. arctic-council.org/index.php/en/about-us/arctic-council/history>.
(426) See generally Njord Wegge, "The Political Order in the Arctic: power structures, regimes and influence" (2011) 47 Polar Record 165.
(427) Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2011, 50ILM 1119 (2011); Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, 15 May 2013, Arctic Council, Emergency Prevention, Preparedness and Response Working Group, online: The Arctic Council <http://www.arctic-council.org/eppr/ agreement-on-cooperation-on-marine-oil-pollution-preparedness-and-response-in-the-arctic/>.
(428) See Margaret Blunden, "Geopolitics and the Northern Sea Route" (2012) 88:1 International Affairs 115 at 121.
(429) See Md. Waliul Hasanat, "Reforming the Arctic Council Against Increasing Climate Change Challenges in the North" (2014) 22:1 Mich St Int'l L R 195 at 223-224.
(430) Torbjorn Pedersen, "Debates over the Role of the Arctic Council" (2012) 43 Ocean Dev. & Int'l L 146 at 151 (quoting a United States diplomatic cable's summary of its own Deputy Secretary of State [Negroponte]'s and Assistant Secretary McMurry's view ["unwieldy/smaller group" attributed to McMurry] and of Norway's Foreign Minister [StoereJ's view ["right sense of the word"]. Elsewhere, Pedersen claims Denmark's Foreign Minister Moeller called the smaller group "necessary;" and that Russia's Foreign Minister Lavrov said "the Five Arctic Littoral States should show leadership in the Arctic Council"). Ibid at 150 and 152.
(431) Ibid at 150 (quoting a United States diplomatic cable's summary of the Danish Foreign Ministers view). See Christopher R. Rossi, "The Club Within the Club: the Challenge of a Soft Law Framework in a Global Arctic Context" The Polar lournal 1-27 (2015) (forthcoming).
(432) Pavel K Baev, "Russia's Arctic Ambitions and Anxieties" 112:756 Current History (2013) 265 at 268. Baev also concludes "Moscow seeks to convince the littoral states ... of the benefits of dividing the Arctic Ocean's continental shelf among them by legitimizing claims for expanding 'exclusive economic zones' beyond the standard 20 nautical mile limit." Ibid at 267.
(433.) See Address of Olafur Grimsson, President of Iceland, National Press Club, Apr. 15, 2013, online: http://press.org/news-multimedia/videos/ npc-luncheon-%C3%B31afur-gr%C3%ADmsson.
(434.) See Shackelford, Supra note 88 at 30. See also Nicholson, supra note 385 at 198 (concluding a need for more effective and universal enforcement of the common heritage principle to forestall "dissentient state action, confrontation and disunity" in areas including the moon and other celestial bodies, outer space, and world heritage areas).
(435.) See generally Eric William Hunter Christie, The Antarctic Problem: An Historical and Political Study, 1st ed (UK: George Allen & Unwin, 1951) (discussing specifically the historical territorial disputes among Great Britain, Argentina, and Chile).
(436.) 1959 Antarctic Treaty, 1 December 1959,402 UNTS 71, art IV(2), (entered into force 23 June 1961) (safeguarding the interests of states asserting, supporting, or denying a claim of territorial sovereignty while the treaty is in force). See generally Francesco Francioni, "Resource Sharing in Antarctica: For Whose Benefit?" (1990) Eur J Int'l L 258.
(437.) Currently seven Asian countries (China, Taiwan, The Philippines, Vietnam, Malaysia, Indonesia, Brunei) have made various and conflicting claims over the continental shelf of the South China Sea and huge oil and gas reserves. See "South China Sea" US Energy Information Administration (7 February 2013), online: US Energy Information Administration <http://www. eia.gov/countries/regions-topics.cfm?fips=SCS> (estimating approximately 11 billion barrels of oil and 190 trillion cubic feet of natural gas in proved and probable reserves). See also Zrasul, "Politics Aside, The South China Sea Controversy Raises the Old Issue of How Far Does Your Continental Shelf Extend" PoliticoAnalyst (1 June 2012), online: PoliticoAnalyst <http:// politicoanalyst.com/2012/06/01/poli tics-aside-the-south-china-sea-controversy-raises-the-oldissue-of-how-far-does-your-continental-shelf-extend/>. A 'war of diplomatic notes' has erupted over continental shelf extension claims. See Guifang (Julia) Xue, "Deep Danger: Intensified Competition in the South China Sea and Implications for China" (2012) 17:2 Ocean & Coast. LJ 307,313.
(438.) Edythe Weeks, Outer Space Development, International Relations and Space Law: A Method for Elucidating Seeds 1st ed (UK: Cambridge Scholars Publishing, 2012) at xiii-xiv, 6 (noting plans in the $58.4 billion 2010 NASA Authorization Act to privatize spacecraft development, create commercial space habitats, stations, and settlements, to initiate commercial space mining, and to engage in commercial spaceport construction in light of the 1967 Outer Space Treaty, which deems Outer Space "the province of mankind.").
(439.) The problem of non liquet arises most often in the context of judicial decision-making, whereby, due to some obscurity, logical or social insufficiency, silence or absence of law, a court fails to render a judgment. Such a decision--not to decide--is considered an odious gap, or denial of justice, and is regarded as illegal. See generally Lucien Siorat, Le Probleme des lacunes en Droit International: Contribution a L'Etudes des Sources du droit et de la Fonction Judiciaire (Paris: Librairie generale de droit et de jurisprudence, 1958). The problematic appearance of non liquet also has been explored widely outside the judicial realm, making it a problem of general international law, as well. The fact that the Commission provides recommendations as opposed to decisions invites consideration of justiciability, or applicability in the formal machinery of UNCLOS Part XV. Julius Stone has noted that the doctrine of non liquet comes into play when the application of rules of appropriate content and precision are lacking, giving rise to questions regarding a decisionmakers (in)ability to resolve disputes. See Julius Stone, "Non Liquet and the Function of Law in the International Community" (1959) 35 Brit YB Int'l L 125. Although chided for his piece on the Grotian Tradition, Lauterpacht's contributions to the discussion of non liquet are seminal. See generally Hersch Lauterpacht, "Some Observations on the Prohibition of 'Non Liquet' and the Completeness of the Law" in Symbolae Verzijl (La Haye/the Hague: M. Nijhoff, 1958) 196. Timo Koivurova has brought up the problem of normative and governance gaps in the Arctic context. See Timo Koivurova, "Gaps in International Regulatory Frameworks for the Arctic Ocean" in PA Berkman & AN Vylegzhanin eds. Environmental Security in the Arctic Ocean (Dordrecht: Springer, 2013) 139.
Christopher R. Rossi, Adjunct Faculty, University of Iowa College of Law. Ph.D. and M.A., lohns Hopkins (SAIS); LL.M., London; J.D., Iowa; B.A., Washington University (St. Louis). I thank Drew Cumings-Peterson and Edward Gordon for suggestions and law librarian John Bergstrom for assistance.
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|Author:||Rossi, Christopher R.|
|Publication:||Journal of International Law & International Relations|
|Date:||Mar 22, 2015|
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