Against the Grotian Tradition

The World Economic Forum in Davos is ending with talk of a rupture in world affairs, a collapse of international law, a descent into chaos and the rise of a new global order in which bullies rule like kings, weaker nations are property to be bought and sold by the stronger, and the only checks and balances on power are fluctuating stock prices. ‘Nostalgia is not a strategy,’ Mark Carney said. This must all sound extremely odd to the Indigenous people of Canada, America, Australia or Greenland, for whom that old order meant only catastrophe.

The origins of the rules-based order lie in the legal justifications for an act of piracy, motivated by profit. Mare Liberum (‘The Freedom of the Seas’), published in 1609 by the Dutch legal theorist Hugo Grotius, is commonly identified as a foundational text of modern international law. What became known after the Second World War as the Grotian tradition has often been taken to represent humanity’s best hopes for a world order based on the principles of justice, freedom and peace among nations.

The Dutch East India Company, formed in 1602, was the first modern business corporation. Not only did it develop a legal and fiscal apparatus based on limited liability and joint stock holdings, which could be traded on the newly created exchange in Amsterdam, it was also granted the rights of a ‘corporate sovereign’, which meant it could raise armies, wage wars, maintain garrisons, form binding treaties with rulers overseas and impose governors on defeated populations.

At the start of the 17th century, the lucrative spice trade of the Malay Peninsula was a monopoly of Portugal’s Estado da Índia. On 25 February 1603, a Portuguese cargo ship, the Santa Catarina,was ambushed off Singapore. Its assailants were warships under the command of the Dutch admiral Jakob van Heemskerk. The Santa Catarina’s freight of spices, silk and other commodities had a value equivalent to half the Company’s capital. Once it had been auctioned off in Amsterdam, the shareholders – nervous of losing their ill-gotten gains – employed Grotius, the Netherlands’ top legal mind, to write a treatise defending van Heemskerk’s actions (Grotius was the admiral’s cousin).

Grotius argued that wars between nations may be legally justified if they advance the ‘natural’ rights of those nations to engage freely in commerce. On this basis, the Dutch East India Company proceeded to create the opposite of free trade in the Indian Ocean. By the 1650s, it was enforcing a monopoly more complete than anything achieved by the Portuguese. In their fight for dominance, both nations laid waste to a cosmopolitan maritime world – including the Malay port city of Melaka, once the unrivalled hub of the global spice trade – which really was built on principles of free trade and hospitality to merchants of all nations and religions. The Banda Islands, now part of Indonesia, were the world’s only source of nutmeg and mace. When their people resisted, the Company adopted a scorched earth policy, killing most and selling the survivors into slavery, then resettling their lands with plantation workers from elsewhere.

If such are the origins of international law and a ‘rules-based’ order, why are we so surprised at what is going on now? How could a legal argument for ‘freedom of the seas’ come into being to serve the interests of a corporation whose purpose was to bring about the opposite? These might seem like historical questions. But for the global elite in Davos, to speak of the ‘Grotian tradition’ means to invoke humanity’s hopes for a better future. Perhaps it’s time for all of us to face up to what the victims of empire and colonisation have known all along: that, for generations, those hopes have been built on a gross distortion of history, on a set of lies and illusions. If we don’t, our best prospects are merely to postpone the worst outcomes of this ‘new’ global order.