On 12 July, 2016, the Permanent Court of Arbitration in The Hague made a non-binding ruling concerning the Law of the Sea. The former regime of the Philippines (under Aquino) had made a unilateral application to have the Nanhai Zhudao (South China Sea Islands, known in English as the Spratley Islands) declared rocks rather than islands and therefore solely under its jurisdiction. The tribunal found in favour of the Philippines, which has led to the inevitable flurry of arguments back and forth.
China indicated from the beginning that a ruling either way would have no impact or force. Taiwan also has rejected the finding as well, since it lays claim to some of the islands, as does Vietnam. Of course, spokespersons in the USA and Australia are huffing and puffing about the ‘law of the sea’ and ‘freedom of navigation’.
So let us backtrack a little to get some perspective on the so-called “freedom of the seas”. The argument dates back to the ingenious Dutch jurist, Hugo Grotius (1583–1645). He was called upon by the Dutch East India Company to find some way of justifying the capture of the Portuguese carrack Santa Catarina by the Dutch captain, Jabob van Heemskerck, on February 25, 1603. The seized cargo was sold in Amsterdam later that year for no less than three million Dutch guilders. It increased the coffers of the Company by fifty percent.
Obviously, much was at stake. Grotius musters all his legal, philosophical and theological to pen De jure Praedae (Commentary on the Law of Prize and Booty). Two elaborate and key arguments were made with relevance to the current situation.
First, using all his Eurocentric assumptions, Grotius argues that possession of land and sea can only be claimed if there is evidence of human activity involving construction or the definition of boundaries. Wharves and jetties on shore may be fine, but on the open seas it is another matter entirely. Crucially, this argument is part of a much longer effort to retell the story of Genesis 1-3 so as to show that God willed and ordered private property and a universal ‘natural law’.
Second, he argues – good Arminian theologian that he was – that an individual is responsible for good and evil. This also means that an individual can punish evil and recompense good, subject of course to the universal principles established by God. Thus, Dutch mariners on their gunboats-cum-merchant ships were justified in seizing Portuguese ships. He does not mean a fleet of Dutch war ships under the direction of the government but individual captains working for a private company in the distant seas of the Indies, far from the practices of Western European customs and laws. As rational, free-willing actors, the Portuguese had willingly violated the laws of nature by claiming the seas as their own, but the Dutch captain also acted in accordance with those principles by punishing them for such an act.
What did the hard-headed directors of the Dutch East India Company make of all this? They were somewhat nonplussed by the deft philosophical, theological and legal arguments, peppered with quotations from classical Greek and Roman authors. Instead, they seized on a section and published it in 1609, with the title Mare Liberum (On the Freedom of the Seas). Another 250 years had to pass before the whole text was accidentally discovered.
These directors saw clearly that all of Grotius’s complex arguments were really propaganda. ‘Freedom of the seas’ really meant that the gunboats of the Dutch East India Company could sail where they wanted and seize who they wanted. A convenient argument that has been used ever since, whether by the British Empire or now the declining American Empire.
To return to the current situation concerning the South China Sea. Back in 1603, the Santa Catarina had been on its way from Macau to Malacca, laden with Ming porcelain, Chinese silk, musk and so on. Heemskerk seized the ship just off Singapore, after it had passed through the South China Sea. Further, the ship may have been Portuguese, but at the time Portugal was part of the Spanish Empire. And it was the Spanish who colonized the Philippines in 1565.
In 2016 we have China, a former Spanish colony (the Philippines), and the South China Sea, where a significant portion of the world’s shipping once again can be found. And the ‘arbitration’ takes place in The Hague, the Netherlands, where the Dutch East India Company first sought to develop the international law of the ‘freedom of the seas’ for its own purposes.
I cannot help thinking of Marx’s observation, “Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce”.