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11 Hugo Grotius and the Freedom of the Seas (According to De the Hugo Grotius and the Freedom of Seas (according to De jure belli ac pacis libri tres) MALTEDIESSELHORST* A In the following essay we shall be looking at Grotius's De jure belli ac pacis libri tres, with the purpose of developing, on the basis of his own principles, the views he puts forward there about the freedom of the seas and - as part of that - the freedom of the sea-bed. We shall ten go on to consider modern problems relating to the law of the sea-bed. Finally we shall attempt to make a summing up. B I. It is in his "Prolegomena" that Grotius pre-eminently expresses his fundamental views. He begins by outlining the importance of an exposition of natural law and the law of nationsl, and then goes into the counter- positions, according to which law has no place in war.2 In order to arrive at a decision here, he first of all makes Carneades the spokesman. Carneades propounds the view that human beings, like all other living things, are by nature moved solely by the impulse towards what is advantageous and expedient.3 Contrary to this assertion, Grotius points to the Stoa, arguing that human beings differ from other living things through their desire for society - a desire that is ruled by, and is in accordance with, reason. Man is therefore not solely, at least, subject to the impulse towards what is ex- pedient. On the contrary, the fact of language indicates his powerful desire for society, by way of which he learns to act similarly under similar con- ditions - in other words, to act according to rules.4 One of these rules (of law), Grotius says in a first summing up, is that a person should abstain from laying hands on another person's property, or should replace it, as the case may be. Other features include the obligation to fulfil promises that have been made, to make restitution for any damage we have inflicted * Göttingen University. 1 prol. 1 and 2. 2 prol. 3 and 4. 3 prol. 5. 4 prol. 8. 11 through our own fault - and also retaliation, through the infliction of punishment.5 We need not consider here what in Grotius's view is not law in the true sense, but is directed towards what is agreeable and what is harmful. On the other hand it is important to examine his opinion that what he has said would apply even if there were no God, or even if God did not concern himself with human affairs - a Realist position, based on the independent existence of ideas, which Grotius then immediately and characteristically denounces as highly sinful, being contrary to reason, tradition and revelation.6 So ultimately natural law must be traced back to God, since God chose to create human beings characterised by the desire for rational sociality.7 Volitional divine law also points back to God, and this even more directly, Grotius goes on8, though without at this point pursuing the train of thought any further. Now, however, he becomes somewhat more specific. It is in accordance with natural law to observe contracts; and it is on contract that the closer human associations, civil law and hence also the state are based.9 Car- neades, who wants to trace back law exclusively to expediency, is therefore only partly right: nature itself would make us seek for society even if we had no needs. But admittedly the neediness of man, who is weak when dependent on himself alone, is an additional motive; and in the same way expediency is one of the reasons for the foundation of civil law.10 The law of nations, which has come into being through the consent of different states, is not aimed at expediency in any particular sense, but rather at what is of advantage to the human race in general." Grotius levies a further argument against Carneades: the observance of law may not always cor- respond to present expediency; it may rather contribute to what is of permanent advantage to the person or community in question. But quite apart from this, the observance of law is not a sign of foolishness, as Carneades thinks; it is a reflection of wisdom.12 Nor is it true that man has been made to cultivate law by a kind of force, even though the courts have been established particularly to enforce the rights of the weak against the 6 prol. 11. 7 prol. 12. 8prol. 12 a. A. y prol. 15. lo prol. 16. " prol. 17. 12 prol. 18. 12 .
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