Sea Control - Sea Control 307 - Hugo Grotius and the Origins of Maritime Lawfare

Episode Date: January 6, 2022

Links1. McMullen History Symposium presentation by Dennis Harbin

Hey, folks. Jared here. I'm joined today by Dennis Harbin. We'll be discussing Hugo Grotius, The Seizure of the Santa Catarina, and the Origins of Maritime Lawfare. This episode was edited and produced by David Zahida. Speaking of audio editors, we're looking to add to our team. If you're interested, please email us at ccontrol at simsec.org with your resume. At SimSec, we believe victory in the maritime domain starts with great ideas communicated compellingly. Write, fight, win. Being on Giving Tuesday and going through December, and we're going to extend it a little bit on to January,

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Hello, how are you, mates, and welcome back aboard Sea Control. My guest today is Lieutenant Commander Dennis Harbin. We're going to be discussing his paper for the McMullen Naval History Symposium, The Seizure of the Santa Catarina, Hugo Grotius, and the Origins of Maritime Lawfare. So Dennis, welcome. Could you start by telling us a little bit about your background, please? Yeah, sure. First of all, thanks a lot for inviting me on. This podcast is just an amazing forum, so I'm really honored to be a part of this and be brought on today. So I'm a Navy judge advocate, currently assigned here in the Suffolk, Virginia Beach area on the Joint Staff and the Joint Force Development Directorate.

But prior to that, you know, I was a SWO first. That's how I started my naval career and transitioned into the JAG Corps through the Navy Law Education Program. For the past years, I've just done basic JAG stuff that everyone sort of sees and knows. I was a prosecutor. I was a defense counsel. I did legal assistance in Norfolk, thousands of wills and all that good stuff, landlord-tenant. And then I went to Spain, and I was the legal advisor to the commander for Naval Activities Spain over there, which is a great time for the family. And then before getting here to the joint staff, I spent a year in Charlottesville at the Army's JAG School, really doing a deep dive

into military law and national security law, again, for about a year. Part of the genesis of digging into these fascinating issues that I look forward to talking with you today. Thanks. As a reminder, all opinions are our own and not representative of any institution with which we might be otherwise associated. I'll start with the the first most obvious question is, who is Hugo Grotius? Hugo Grotius was a Dutch lawyer in the 1600s, around the 17th century, early part thereof. I kind of opened up the intro of my paper as describing him as a lawgiver. And I think really what illustrates who he is, is that, you know, if you go into the Capitol building and around the house chamber, there's 23 doors.

above each door is this marble relief of who we've recognized as lawgivers who has inspired democracy and the rule of law through the ages and you know a lot of folks recognized and they obviously like thomas jefferson and george mason hamarabi moses napoleon is up there and one of them is this hugo grotius i was first introduced to him in law school and a lot of the c class For reasons we'll talk about. Again, he's sort of known as one of the, if not the father of international law for his big, important work that he wrote later in his life on the laws of war and peace, which he really brought forward, you know, this just war tradition written by a lot of theologians back in the Middle Ages. But he brought it all forward into the Enlightenment to a period in which we recognize global and international affairs today. Based on his, you know, when he was alive, he sort of kicked all of that off. And he's got just a fascinating story.

And, you know, one of the interesting things about his life is that he was exiled from the Netherlands. He was put in prison for a life sentence in a prison there in a castle. and his wife actually helped him break out of the castle through hiding in a book chest, right? And he fled to Paris and lived there for most of his life until he died. But that's where he wrote this major work on the laws of war and peace, which is really part of it. And we'll talk more, but as a young man, he was a corporate lawyer. I think he was hired, you know, he became a lawyer when he was 15 years old, right? So he was a child prodigy.

he was hired by the Dutch East India Company to represent them in this whole Santa Catarina business. You described the situation in the South China Sea during Grotius' lifetime as analogous to today. How is that the case? I draw the line that the South China Sea sort of hosted this 17th century version of great power competition with navigation and trading rights really at its core. Some folks may be familiar, you know, how the Pope divided the world back in the 1400s or 1500s, I think it was 1494, right, was this treaty between Spain and Portugal. And the Portuguese got a lot of, you know, mostly East Asia and those trading rights. Well, then as the maritime powers in Europe started to become

wealthier and push out, there was a lot of competition. That competition happened to be in the South China Sea. Grotius was sort of at the center of it, representing, again, the Dutch trading companies, the heart of the issues were really about navigation and trading, which arguably is the same sort of issues we're dealing with today in the South China Sea. You wrote that the seizure of the set of Canary was a seminal event in maritime history. So what happened? It was interesting. I found this article when I was doing my research in the paper, and it was celebrating the birthday of Singapore. And it was a local journalist who Hey, this is an event that everybody should know because it really sort of kicked off this episode of international law and the freedom of the sea and navigational rights.

Think great power competition. The Portuguese in that area have a hold with a lot of the trading and colonies on the smaller islands there. The Dutch are trying to push in. And, of course, there's violence. There's clashing. so captain van heemskerk was in command of this dutch trading fleet and he heard about how a year prior this is about 1603 so 1602 ish time frame the portuguese and one of the little islands over there murdered 20 dutch sailors so he sought revenge he partnered with the johor people

that's in malaysia and he was tipped off that this portuguese trading fleet was coming through china and they would be anchoring right there at the mouth of the strait of singapore so he sat there he waited on an early morning he woke he found the santa catarina anchored and it's called a now and i've got the dimension so these portuguese nows which the santa catarina was Had a 32-foot draft, weighed about 1,400 tons, and was manned with 700 sailors. Probably had about 100 women and children on. So these were huge. Definitely, like, dwarfed the ships that the Dutch were using.

He opened up fire, right? He had his small galleys, but he had his two ships, the White Lion and the Yakmar, and they just opened up on her and bombarded her for about 10 hours. And then in that evening, the captain of the Santa Catarina surrendered. So they took it as a prize, sailed it back to Amsterdam, where the College of Admiralty declared it essentially as a fair prize, which kicked off how Hugo Grotius got involved. How was the Santa Catarina's case resolved and what was Grotius' role? The College of Admiralty, right, and we all know Admiralty law and prize law, right? And back in the age of sail, you captured ships, you brought them in. There would be a court that adjudicated these cases and then usually would condemn it as a prize, which was what the case was here.

They sold it off, sold off all the cargo. This ship was massive. It sold off for essentially what the income of the English government was at the time. definitely what the English East India Company was making. So this was a huge amount of money, right? And so it drew a lot of public scrutiny, both in the Netherlands, you know, this is they're at war with Spain during this period, but they're not at war with Portugal. So what are we doing sort of capturing their ships? Is this really a fair prize? Was it right for a Dutch trader to sort of use the type of force that he did to capture this ship. The Dutch East India Company

hired Hugo Grotius. And at the time, I think he was like 21 or 22 years old. And sort of not to like represent them in court, but to sort of be a public relations counselor, right? So sort of do damage control and really get out in public opinion and justify what the company did. So he looked at this problem of using force in the South China Sea against the Dutch from the perspective of a corporate lawyer. But when he did that, he wrote this massive book called, actually, it went unpublished, Commentary on the Laws of Prize and Booty, right, in which he really sort of set out this justification for the use of force centered around the fact that the right to navigate and trade as a natural law right and it's been recognized also through the ages

relying heavily on the romans he wrote this piece and it eventually wasn't published you know they sort of moved forward but then a few years later uh when the dutch and spanish were negotiating a peace treaty the company again was like we want our trading rights protected right we don't want the Dutch government to negotiate away our right to trade in Southeast Asia. So they hired Grotius again, and he essentially pulled out the pieces on the freedom of navigation, the freedom of trade, and published them in what we know as today as Mare Liberum, or the Free Sea. And that really sparked this debate that I think we'll talk about. What was the legal basis for Grotius's argument for freedom of the seas but this is where international law as sort of how we recognize it

and understand it today was first being developed and formed so prior to this we had sort of latin verses and poems written centuries earlier we had a basis of roman law we sort of understood what state practice was but also this was a period where states were forming right and then pushing out throughout the world, which is what international law is, when states interact with each other. So there's no longer just border disputes, but they're global affairs, right? Grotius was also extremely religious, recognized Protestant theologian as well. And so he relied heavily, just as other scholars in that day did, relied on natural law or what sort of, you know, where God gives us the rights as people and sort of that tradition mixed with, again, what Romans had said.

And so the two sort of factors that he developed to argue for and defend this free sea principle was one, that the ability of states to trade and thus navigate freely is, again, a natural law right. So God, nature gave people goods to survive, but not all the goods are in one place. So therefore, you have to go and get the goods. And therefore, if God or nature has given those goods out to people, then you should have a right to go where you need to, to have your bounty right and to prosper and to take advantage of those gifts. Right. So that's the right to navigate and trade. and then the second is that the ocean unlike the land cannot be possessed and thus is common property right it's property in common there he just sort of makes the analogy like you can't

build on the ocean china right and that's a whole different discussion later about artificial islands but at the time you know you can't build forts on the ocean you can't possess it you can't occupy it. And if you can't do that, then it's the right to, again, trade and navigate freely on it because it is a common. That idea that the sea is common, right, sort of sparked this debate and the English and the Scottish, you know, the British people really sort of push again, push back. They wrote, I think it was a Scottish jurist, wrote Mari Clausen, right, defending fishing rights. So there was this huge debate that went back and forth. And we see sort of the result of this debate and what we know today as UNCLOS, right? The United Nations Convention

on the Law of the Sea, which really was this compromise between coastal rights, far we can go out, what do we have sovereignty over? What do we have jurisdiction, rights over resources versus is, again, this understanding and this principle that people have the right to navigate freely throughout the world. And so you get that from UNCLOS. Again, that was really sort of the legacy and where it came to Grotius first being the one to articulate this in this Enlightenment perspective. Now, you argue that one of the byproducts of Grotius' involvement in the seizure is his defense laid the foundation of maritime warfare. What was the legacy of his defense of the seizure of Santa Catarina. You look through Gershius, and when I first started this project,

the question I was really trying to answer was, is the free sea principle, the freedom of navigation, is it just to go to war over that? Is that a just cause for war, right? We understand territorial sovereignty or territorial integrity and political sovereignty, right, the UN Charter, but what about this principle of the freedom of navigation? He also wrote later in his life, and what he's really known for and what he's famous for is on the laws of war and peace. And when he did this, he, I would argue, cemented this relationship between law and war. War was no longer just about who had the biggest army. Wars were fought over greed and for many other things. Gross just really laid the foundation that for there to be a just war, it had to have sort of

a legal reasoning. He made this case that, hey, war is just like the courts. And when there isn't a court to adjudicate your claim, then war is moral. But it had to be based on these recognizable rights. And one of these rights was the freedom of the sea. Now, obviously, we think of war Differently now, the UN Charter essentially prohibits war except for very limited circumstances. Where this gap is between this right that we all understand and have, but yet maybe doesn't rise to the level of justifiable conflict in this era, right, of this rules-based order in which war is essentially prohibited, what fills that gap? And then I argue short of war and what we sort of recognize as lawfare, these types of military operations, specifically naval operations that rely on the law to do it, but also at the same time is enforcing this international law principle of the free sea. So I think this sort of like relationship between the two is really the legacy of Grotius. Instead of just saying, hey, Van Hemskerk took revenge. He did what he needed to do. But no, he laid this huge foundation that he was defending this freedom to navigate and to trade and laid the foundation for that. And we see that even today, you know, in the 21st century with freedom of navigation operations, with all of that.

So I think that's sort of the legacy that Santa Catarina and Grotius' defense of the seizure had. So you kind of gave a definition of lawfare in the course of your last answer. How do you apply lawfare to sea power? Or how does lawfare apply to sea power? so lawfare as sort of we recognize it and there's no doctrinal definition or anything like that right it was the phrase as we sort of use it today was coined by general dunlap who was then a colonel now he's a retired major general uh was the uh deputy judge advocate general of the air force right he wrote a paper back in 2001 recognizing how essentially isis and al-qaeda and all, you know, are using the law to achieve military objectives, pointing to the fact that

we're violating the law of armed conflict and that's sort of having an effect, right? We had ceasefires and everything like that. Now, when we focus towards peer-to-peer competition or what have you, the definition of lawfare is being expanded. A lot of it's this perception of legitimacy. It's this information conflict of getting the right message out there, justifying your actions so that you get support both at home and abroad. That's an important effect. How it results, or how it involves sea power is that historically speaking, and there's some great work out there. There's a book called The Free Sea by Pedroso and Kraska, professors at the Naval War College who really set out looking at the history of the U.S. Navy, how most conflicts

related to some sort of aspect of the law of the sea, the freedom of navigation, whether it's unrestricted submarine warfare with U-boats, whether it's the War of 1812 and British impressing our sailors. So every turn throughout our naval history had some sort of something to do with the law and it's just by the very nature of the navy and what the environment is like one guy i quote a lot of professor dp o'connell he was a new zealand legal professor and he wrote that the law has never been static its pliable character has meant that it has been made to serve the purposes of sea power and so has become a weapon in the naval armory and he He said, the law of the sea has thus become the stimulus to sea power and not its restraint.

And I love those two quotes because, again, in his book, The Influence of Law and Sea Power, he looks back at history and, again, sort of connects the dots of all of these maritime clashes. And whether it's conflict at sea, obviously, is just different in nature than conflict on land. I think a lot of the international legal issues are more likely to play out at sea, removed from the population, right? Below the threshold of troops massing on the border, whereas at sea, literally you could go into conflict tonight at any point in time, likely sometimes over a dispute of an international legal term, right? by its very nature, the law influences sea power through Grotius. And I think the free sea, we sort of see that while sea power relies on this legal concept of the free sea. I think it's a circular logic that we're still starting to flush out. They've mentioned freedom of navigation operations. It's probably the thing that most people are familiar with as far as So the way that you've discussed Grotius and the way we demonstrate the freedom of the sea, are there any other ways that you would describe it as being relevant today?

We try to justify the United States, and you see this when we commit military forces and we use force, we couch it in legal terms, right? Because that is the way we justify it. And that really, again, goes back to Grotius' other work on the laws of war and peace. Tying down and linking our ability to use force into sort of a legal right or a legal term. The clearest example, especially related to sea power and naval operations, is FONOPS, because that's just the perfect one, right? Where literally we're working with the State Department, conducting a naval operation for the very sake of enforcing a legal right. but again that free sea principle and that freedom of navigation we rely on it in order to conduct that operation but while we're conducting that operation we're

also defending it so i think it's an amazing sort of you know i guess both ways and i think again it's a circular logic here but i just think that's a wonderful example and you know there's others you know there's the artificial islands piece i think that sort of falls in the category of misusing the law is also lawfare. And obviously, we as a defending the rules-based order, we're not going to misuse it. We're going to try to enforce it and use it. Well, I'd like to thank my guest, Dennis Harbin. Dennis, where can we find you online? What are you working on next? Probably primarily LinkedIn. And I'm still trying to, again, flush out this whole, this logic of this influence and this relationship between law

and specifically sea power. And when I was at McMullen, there was a lot of great papers that talked about prize law and privateering and Naval Arms Treaty. So I want to maybe sort of dig into, again, looking at the historical perspective, how law influences sort of national security decision-making in the maritime domain. Really, I think I focused on this one event and tied it again to today but now try to fill in the gap in the middle well thank you again for coming on to the listeners thanks for tuning in we'll see you next time © BF-WATCH TV 2021 Oh, no!