The Permanent Court of Arbitration has just reached a decision arbitrating the case brought by the Philippines against China in the South China Sea. The court has decided that the ‘9 Dash Line’ drafted by China back in 1947 is invalid. China has angrily rejected the ruling, and there’s really not a blind thing the Philippines can do
about it, no matter how gleeful they may be at present.
It’s appropriate that this decision as made in The Hague, because international maritime law as we know it began in the Netherlands, 400 years ago, when a Dutchman, Huig de Groot, wrote an unpublished treatise De Indis (On the Indies) in 1604/5, and followed up by publishing Mare Liberum (The Free Sea) in 1609. These laid down the concept of the freedom of the seas, on which the South China Sea decision is based.
Freedom of the Seas sounds both worthy and universal, but even apparently universal legal concepts occur in a particular context. Huig de Groot, better known by his Latinized name Hugo Grotius, was dealing with a very specific event that occurred not all that far from the South China Sea. In 1603, Dutch merchant adventurers seized a Portuguese caravel near Singapore, and subsequently hired a smart young lawyer – Grotius – to provide the legal backing for their action.
To understand the background, we need to go back before Grotius’s birth to 1568, when the Dutch rose in rebellion against their Spanish rulers. The Netherlands had been incorporated in the Hapsburg Empire when the last Duke of Burgundy died on the battlefield, leaving his only daughter Mary the greatest heiress in Europe. After tense diplomatic negotiations, she was quickly married off to Archduke Maximilian of Austria. Their son married the heiress of the Spanish kingdoms, so their grandson, Charles V, found himself ruling an empire that stretched from the Netherlands (i.e. Burgundy) to Austria to Spain to Spanish America.
The arrangement worked more or less under Charles V (1500-1558), who was brought up in the Netherlands, spoke Dutch, and spent most of his life racing from Kingdom to County to Duchy around his crazy empire, but his son, Philip II, settled down outside Madrid, a Spaniard through and through. Add in the complexities of the Protestant Reformation, and the whole tottering edifice began to crumble.
Then in 1580, the legitimate Portuguese royal line died out. Philip’s mother had been a Portuguese princess, so he claimed this throne as well. The Hispanic Peninsula was combined under a single ruler – and so were their trade and territories overseas.
During the 16th century, Europe slowly digested the amazing implications of Columbus’s discovery of a whole New World. In a supreme act of European hubris, in 1494 the Pope divided the globe between Spain and Portugal in the Treaty of Tordesillas.
Spain (actually Castile) took the Western Hemisphere, while Portugal – which had been expanding down the African coast and soon entered the Indian Ocean – took the Eastern Hemisphere. No one outside Europe, of course, knew that the carve up had taken place – and even within Europe, it took some time for other nations to pay attention. After 1580, the Hispanic domination of the world seemed complete – at least from the European perspective.
Except that, like mammals evolving during the age of the dinosaurs, smaller maritime powers were beginning to emerge.
The Dutch had nothing like the economic or military power of the Spanish/Portuguese Empire – but they were sailors and businessmen, and they knew how to use their maritime power to hurt. The Dutch – and the English under Elizabeth Tudor, who backed the Dutch Revolt – attacked Philip II’s combined empire through its shipping. Dutch and English privateers bled the Spanish state of its bullion, attacking the heavy galleons that brought the gold and silver back to Europe.
They also began to challenge the Hispanic monopoly, setting up trading posts in West Africa and the West Indies to draw trade (including the slave trade) away from the Spaniards. It was Portugal’s bad luck that, from 1580, another dynastic accident meant that its trade in the East Indies was also fair game.
In 1603, the newly created Dutch East India Company [Vereenigde Oost-Indische Compagnie or VOC] seized the spice-laden Santa Catarina off Singapore and sailed it back to Amsterdam. The shareholders were delighted, but there were some uneasy consciences amongst them, and Grotius was given the task of demonstrating that the seizure had taken place in open waters and was therefore legal.
Grotius argued that the sea belongs to no one. Any state has the right to sail across it, and in the 1603 context, the Dutch were not trespassers on a ‘Spanish lake’. (As rebels, they were entitled to the seizure as an act of war). Of course, Grotius’s treatise, especially the published 1609 version, has a much wider context, but he was also dealing with a particular situation and its implications.
It was at every level a very Eurocentric perspective. No one in the Netherlands had a clue that Polynesians had sailed the Pacific – the so-called Spanish Lake – for centuries, or that Malays, Javanese, Vietnamese, Cantonese and Filipinos all shared the waterways of South East Asia, including the South China Sea.
This sharing was not, of course, necessarily good-natured. In the South China Sea, for instance, there was a very long history of Cantonese clans and families competing with each other, building levees and planting barriers strategically across the outlets of the Pearl River estuary so that they – and not their neighbours – could hold on to the precious silt that poured down the river. Ironically, perhaps, the Netherlands has a similar tradition of reshaping their estuarine landscape with canals and river mud. Such historic ‘terraforming’ is, of course, very different from the massive earthworks China is undertaking today.
China’s ambit claim to control of everything within the ‘9-dash line’ has now been rejected, but perhaps it is time to abandon Grotius’s doctrine of Liberum Mare. According to Grotius, and by implication in the recent decision in The Hague, nobody owns the open sea, and freedom of navigation should be protected at all costs.
What needs protecting today, though, is not just freedom of the seas, but the seas themselves. The oceans are dying – from overfishing, pollution, acidification and rising temperatures. What belongs to no one is cared for by no one. We need to move on to a new way of sharing a precious common resource.
Note: I’m sorry I’ve been silent for so long. My excuse is a bad reaction to a yellow fever shot, and a broken rib. Normal transmission is now resumed.