This lecture began at 4:30 p.m., Wednesday, April 8, 2015, and was given by Sir Kenneth Keith, former Judge on the International Court of Justice, who delivered the 2015 Grotius Lecture; the discussant was Dame Rosalyn Higgins, former President of the International Court of Justice.
SOME THOUGHTS ABOUT GROTIUS, FOUR HUNDRED YEARS ON.
By Kenneth J. Keith *
What would Grotius see as major challenges for international law and its practitioners in our time? How would he approach them? How would he balance beautiful theory and ugly fact? Heritage and heresy? What lessons does he teach us in dealing with our tasks today? (1)
I will be looking back not just to the early seventeenth century, but also over the past fifty years, to 1965, when I came to this meeting for the first time, travelling from Cambridge, Massachusetts, in a Greyhound bus with Peter Trooboff. In the course of the last fifty years, I have been an observer and occasional participant in the application and development of international law in the face of major change and challenge, to refer to the theme of this conference. To mention one matter to which I will return, in 1960, as I began as a junior lawyer in the New Zealand Department of External Affairs, the second United Nations Conference on the Law of the Sea was assembling. It will be recalled that it narrowly failed to adopt a provision for a six-mile territorial sea and a further six-mile exclusive fisheries zone. (2) A few years later, New Zealand adopted a twelve-mile fishing zone. Japan challenged the extension and proposed that the matter be taken to the International Court of Justice. Instead, a phase-out agreement was reached. (3) There were already much more extensive claims, notably the two-hundred-mile claims to a "patrimonial sea" made by Chile, Ecuador, and Peru, and the practice relating to the continental shelf was developing apace. (4)
Four hundred years ago, give or take a few years, we find Hugo Grotius in the early 1600s addressing law of the sea issues: (1) as counsel for the Dutch East Indies Company (the Company) in the Admiralty or Prize Court in Amsterdam in a dispute arising from the seizure by a ship of the Company of a Portuguese galleon in the Straits of Malacca; (2) in 1613 in London, as Pensionary of Rotterdam, a position to which he was appointed when he was just twenty-four, negotiating in Latin with James I of England, about fisheries and much broader matters of trade in the East Indies; and (3) in 1615, again in London, negotiating over whaling around Spitsbergen. (5) He was already a renowned author, especially on matters of theology, and a poet. But from that time, it is his treatise on the law of prize, De Jure Praedae, or rather one chapter of it, that is relevant for my purpose. The treatise was prepared as a brief for the Company. The famous chapter, "Mare Liberum," was published anonymously in 1608 and was used by the English in the 1613 negotiations. They quoted from the writings of the "assertor Maris Liberi" (the negotiations, written as well as oral, were largely in Latin), taking a passage from the last paragraph of chapter 8 to the effect that freedom of trade is based on a primitive right of nations which has a natural and permanent cause that is part of the law of nature rather than the positivist law of nations. (6) The argument may also be made that the legal underpinning which he gave to the role of the Dutch East Indies Company facilitated the voyage made by Abel Tasman thirty- five years later around the west and southern coasts of Australia and the first discovery and mapping by a European of New Zealand.
THE VARIOUS ROLES OF GROTIUS THE LAWYER
By the time he is thirty, Hugo Grotius has already prepared an important work on international law of large continuing influence--as Professor Ernest Nys, an early honorary member of this Society, declared, in this battle of the books, Grotius had the better of Johannes Selden, his English antagonist--Grotius has undertaken work as an advocate, he has been appointed to two major public offices, and he has had a significant role in diplomatic negotiations, although with some questioning his effectiveness in that role. (7) When we look across those roles, it is the writing of "Mare Liberum" that is by far the most important for international law and international lawyers--taken as an independent scholarly work when it was in fact part of a brief for the Dutch East Indies Company.
As is well-known, the remaining three decades of Grotius's life had amazing twists and turns in high office, as pensionary, in politics and religion, as a person accused and convicted of sedition and sentenced to life imprisonment, his study and writing in the Castle of Lowenstein for two years, notably his Introduction to the Jurisprudence of Holland, (8) his escape in a book-box, his time in Paris and Hamburg, and his ten years as Ambassador of Sweden in Paris. But it is De Jure Belli ac Pads (9) that is the immortal part of him, or at least the major part of that immortal part. Its continuing immeasurable impact flatly denies his last words, words of despair: "By undertaking many things I have accomplished nothing." (10)
In his Prolegomena to that great work, Grotius said that "devotion to study in private life ... [was] the only course ... open to [him, given that he had been] undeservedly forced out from [his] native land, which had been graced by so many of [his] labours...." He was now contributing "somewhat" to the philosophy of law which previously in public service he had practiced with the utmost degree of probity of which he was capable. (11) One message which the life of Grotius and of a number of more recent leading international lawyers teaches me is the value of changing hats--of having time as a scholar, as a practitioner, private and public, in law reform work and in litigation, as counsel or arbitrator or judge. The whole is other than the sum of its parts. A related message is that it may well be that scholarly work lasts the longest. I stress the "may," but recall Oliver Wendell Holmes's marvelous reference to the secret isolated joy of the thinker that a hundred years after they are dead and forgotten, people who have never heard of them will be moving to the measure of their thought--the subtle rapture of a postponed power. (12) And here we are speaking of four hundred years! The example shown by Grotius also makes the point about the importance of governments having good lawyers. Good legal work should help structure and complement good policy advice in the public sector.
THE ENDURING VALUES OF GROTIUS'S WORK
What do I see in that writing that is of enduring value in addressing the challenges the world faces today? I will have to be very selective. In the Prolegomena, Grotius highlights two central matters. While acknowledging his predecessors, especially Gentili, he is the first, he says, to treat the whole of the argument: his topic is "the law which governs the relations of several peoples, or rulers of peoples, whether derived from nature, established by divine ordinance, or introduced by customs and tacit agreement." (13) The enduring influence of great scholars who treat the whole of a body, in this case, of international law, is not measurable. But I am sure that it is the experience of many of us that the understanding of a particular matter may be greatly enhanced if we step back and see it in its more general context. That is a third message. To move away from international law for a moment, when considering the concept of property in a New Zealand case, in one particular area of statutory law, William Blackstone's Commentaries on the Laws of England, notably his structure, helped me well along the way and to see the particular in its context. His books were rights of persons, rights of things, private wrongs, and public wrongs. (14) That structuring, contextual role of the great scholar may even be seen in terms of paragraphs (c) and (d) of Article 38(1) of the International Court of Justice's Statute, as principles or teachings, but certainly not as subsidiary. Should we not, more often, heed what Matthew Arnold said of Sophocles: "[H]e saw life steadily and saw it whole?" (15)
The other matter Grotius emphasizes at the outset goes to substance, to a central issue of any legal system. It was most certain, he said, that there is among nations a common law in force with regard to war and in war. But:
I saw prevailing throughout the Christian world a licence in making war of which even savage nations might be ashamed; recourse being had to arms for slight reasons or none; and when arms were once taken up, all reverence for divine or human law being thrown away, as if men were thenceforth authorized to commit all crimes without restraint. (16) That common law of jus ad bellum and jus in bello, his vigorous differentiation between just and unjust wars, and his flat rejection of private wars returned to his more general formulation and to the full title of the treatise, in "the law of nature and of nations as well as the principal questions of public law" (by which he meant constitutional and criminal law). He did not draw fine lines between international law and national law. A fourth lesson here is that the law controlling resort to armed force should not be seen as recent, as dating, say, from as late as 1928.
THE INTERNATIONAL RULE OF LAW: BETTER IMPLEMENTATION
Hersch Lauterpacht in his great article entitled "The Grotian Tradition in International Law," (17) building on the first brief passage I have quoted and on more besides lists as the first of the treatise's principal and characteristic features that the totality of international relations is subject to the rule of law. That is the fifth lesson I draw. Similar statements have been made by the UN General Assembly, for instance, in its recent declaration on the rule of law. (18) But what does that mean in a practical sense...