Van-Ittersum-Martine-Julia-Forthcoming-Hugo-Grotius-1583-1645-The-Making-of-a-Founding-Father-of-International-Law

1 HUGO GROTIUS (1583–1645): The Making of A Founding Father of International Law* Martine Julia van Ittersum The Dutch jurist Hugo Grotius (1583–1645) became known as the ‘father of international law’ in the nineteenth and twentieth centuries It is hard to avoid this origins myth in a town like The Hague, with its various international courts and centres for the study of international law.1 The Peace Palace in The Hague and its library were conceived right from the start as a temple of international law and a shrine for its alleged founding father P C Molhuysen (1870–1944) and Jacob ter Meulen (1884–1962), the two most important Directors of the Peace Palace Library (PPL) in the first fifty years of its existence, created the Library’s famous Grotiana collection, the biggest collection of Grotius’ printed works in the world.2 Molhuysen also initiated the monumental, 17-volume edition of Grotius’ correspondence, while Ter Meulen compiled a bibliography of all of Grotius’ printed works, still considered authoritative.3 The tradition remains unbroken until today: in 2011, the PPL acquired a first edition of Grotius’ magnum opus, De Jure Belli ac Pacis * This essay chapter was first given as a public lecture at Harvard University in November 2011, when I served as Erasmus Lecturer on the History and Civilization of The Netherlands and Flanders The Leverhulme Trust, the Netherland-America Foundation, the Carnegie Trust for the Universities of Scotland, the Caledonian Research Fund and the Royal Society of Edinburgh have financially supported my research and writing I have also benefited from various visiting fellowships at Huygens ING in The Hague, in 2009-10, and the summers of 2011 and 2013 I should like to thank both Ms Ingrid Kost, Head of Special Collections at the Peace Palace Library, and Mr Jeroen Vervliet, PPL Director, for supporting my research on Grotius for many years now They are not afraid of critical appraisals of the patron saint of the Peace Palace Arthur Eyffinger, The Hague: International Centre of Justice and Peace (The Hague: Jongbloed Law Booksellers, 2003) and Dreaming the Ideal, Living the Attainable: T M C Asser [1838-1913], Founder of The Hague Tradition (The Hague: T M C Asser Press, 2011) Briefwisseling van Hugo Grotius ed P.C Molhuysen, B.L Meulenbroek, Paula Witkam, C Ridderikhof and H.J.M Nellen, 17 vols (The Hague, 1928-2001), now available electronically at http://grotius.huygens.knaw.nl/years; Arthur Eyffinger, The Grotius collection at the Peace Palace: A Concise Catalogue (Assen: Van Gorcum, 1983); The World of Hugo Grotius (1583-1645): Proceedings of the International Colloquium Organized by the Grotius Committee of the Royal Netherlands Academy of Arts and Sciences, Rotterdam, 6-9 April 1983 (Amsterdam & Maarssen: APA – Holland University Press, 1984) Jacob ter Meulen, Concise Bibliography of Hugo Grotius (Leiden: A.W Sijthoff Publishers, 1925); Grotius-tentoonstelling te 's-Gravenhage, 13-28 juni 1925 ed E.A van Beresteyn (Leiden: Sijthoff Publishers, 1925); Jacob ter Meulen and P.J.J Diermanse, Bibliographie des écrits imprimés de Hugo Grotius (The Hague: Martinus Nijhoff, 1950) and Bibliographie des ecrits ́ sur Hugo Grotius imprimeś au XVIIe siecle ̀ (The Hague: Martinus Nijhoff, 1961) 2 (1625), for the sizeable sum of €100,000.4 Nor is there any sign of the International Court of Justice losing interest in Grotius His work was cited most recently in a dispute between Singapore and Malaysia over the island of Pedra Branca (verdict of 23 May 2008).5 ICJ judges routinely receive presentation copies of new editions of Grotius’ work The late Robert Feenstra, the greatest Dutch legal historian of the second half of the twentieth century, offered the ICJ President copies of his1993 edition of De Jure Belli ac Pacis and 2009 edition of Mare Liberum, for example.6 Moreover, Grotius is lionized in countless publications of international lawyers, philosophers, IR specialists and legal historians, who invariably present him as a great humanitarian, a prince of peace and secularizer of international law.7 I take issue with what I call the ‘Grotius Delusion’ My aim is to explain how the origins myth came into being and whose interests have been served by it It was a combination of Dutch nationalism and the rise of modern international law that turned Grotius into a ‘founding father’, with a little help, it should be said, from the American delegates at the 1899 Hague Peace Conference It is based on a highly selective reading of De Jure Belli ac Pacis and completely ignores the larger historical context of Grotius’ work, particularly his hands-on involvement in Western imperialism and colonialism I start with a short overview of Grotius’ life, briefly discuss his public image in The Netherlands Henk Nellen, Grotius's memory honoured: on the acquisition of the first edition of ‘De iure belli ac pacis’ by the Peace Palace Library (The Hague: Peace Palace Library, 2012) Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, Malaysia v Singapore, Judgment, ICJ Rep 2008, p 12, 23 May 2008 Arthur Eyffinger, The International Court of Justice, 1946–1996 (The Hague: Kluwer Law International, 1995); Hugo Grotius, De iure belli ac pacis libri tres in quibus ius naturae & gentium: item iuris publici praecipua explicantur, ed B J A de Kanter-van Hettinga Tromp (Leiden: E.J Brill Publishers, 1939; second, expanded edition with notes by Robert Feenstra and C.A Persenaire, Aalen, Scientia Verlag, 1993); Hugo Grotius, Mare Liberum, 1609-2009: Original Latin Text and Modern English Translation, ed Robert Feenstra, with a general introduction by Jeroen Vervliet (Leiden and Boston: Brill Academic Publishers, 2009) A report on the ‘Mare Liberum 1609-2009’ conference at the PPL on 11 Dec 2009, including pictures of Prof Feenstra presenting his Mare Liberum edition to the ICJ President, can be found on the website of ‘The Hague Academic Coalition’: http://www.haguecoalition.org/mare-liberum-the-freedom-oft/ John Dunn and Ian Harris (eds.), Grotius, vols 1–2 (Cheltenham, UK: Edward Elgar Publishing, 1997) is an anthology of classic 20th century publications on Grotius as ‘secularizer’, ‘humanitarian’, ‘father of international law’, etc See also Hedly Bull et al (eds.) Hugo Grotius and International Relations (Oxford: Clarendon Press, 1990) and Philip Allott, ‘Language, method and the nature of international law,’ British Yearbook of International Law (1971), 79-135, republished in M Koskenniemi, ed., The International Library of Essays in Law and Legal Theory – International Law (1992) 3 in the early modern period, and then examine how it changed as a consequence of the rise of international law in the nineteenth century I end with a discussion of recent historical research on Grotius, which aims to properly contextualize his life and work, rather than to focus on just one aspect of it and use that to justify modern-day arrangements for conflict resolutions between states Grotius’ Life and Times Hugo de Groot, known to the English-speaking world by the Latinised name of Grotius, was born into a prominent regent (i.e patrician) family in Delft on Easter Day 1583 Just two years earlier, the Dutch States General had abjured Philip II of Spain and Portugal as the ruler of the Low Countries and de facto created a new state, the Dutch Republic Grotius started his professional life as a private solicitor, at the tender age of sixteen In 1604, the directors of the Dutch East India Company or VOC asked him to write a defence of the Company’s privateering campaign in Asian waters, aggressively attacking the Portuguese Estado da India Grotius was happy to oblige, and completed his De Indiis in 1607-08 This treatise of 163 folios remained in manuscript, only to appear in print in the nineteenth century, as De Jure Praedae/On the Law of Prize and Booty At the Directors’ request, Grotius did publish chapter twelve of De Indiis separately in 1609 as Mare Liberum/The Free Sea “or …the Right Which the Hollanders Ought to Have to the Indian Trade.” He continued to support the VOC in word and deed for the rest of his life, negotiating on the Company’s behalf with the English East India Company in 1613 and 1615, for example.8 Thanks to the patronage of Johan van Oldenbarnevelt, de facto political leader of the Dutch Republic and a friend of Grotius’ father, he was quickly appointed to a number of high-level political positions at the provincial and federal level He became AdvocateFiscal (i.e public prosecutor) of Holland in December 1607 and Pensionary (i.e chief legal adviser) of the town of Rotterdam in June 1613 In the latter capacity, Grotius joined Martine Julia van Ittersum, Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies, 1595-1615 (Leiden: Brill Academic Publishers, 2006); Hugo Grotius, Commentary on the Law of Prize and Booty, trans Gwladys L Williams and ed Martine Julia van Ittersum (Indianapolis: Liberty Fund, 2006); The Free Sea trans Richard Hakluyt and ed David Armitage (Indianapolis: Liberty Fund, 2004) 4 the Rotterdam delegation in the States of Holland In May 1617, he became a member of the Holland delegation in the Dutch States General, the federal government of the Dutch Republic By all accounts, it was a meteoric political career Grotius would undoubtedly have succeeded Oldenbarnevelt as political leader of the Dutch Republic, had it not been for religious troubles that brought the rebel state to the brink of collapse during the Twelve Years Truce (1609–21) Orthodox Calvinists squared off against the so-called ‘Remonstrants’, followers of the Leiden theologian Arminius Although Arminius’ followers were a minority in the Dutch Reformed Church, they enjoyed the support of the States of Holland, in particular of Oldenbarnevelt and Grotius The theological bickering developed into a major political crisis that endangered the existence of the Dutch Republic Prince Maurice of Orange, commander-in-chief of the country’s naval and military forces and Stadtholder (i.e governor) of six of its seven provinces, could not stand idly by In August 1618, he sought to break the political deadlock by means of a regime change, which landed Grotius in prison for almost three years In view of his close association with Oldenbarnevelt—executed in May 1619—he was lucky to escape with his life.9 Yet Grotius’ political career was far from over In March 1621, he escaped from Loevestein Castle in a book trunk He headed south to Paris, where he lived as an exile for many years and received a pension from the French Crown As a quid pro quo, he dedicated De Jure Belli ac Pacis (1625) to Louis XIII of France Cardinal De Richelieu was eager to tap Grotius’ in-depth knowledge of Dutch overseas expansion and commercial governance, and sought to involve him in the establishment of a French East India Company Yet Grotius was unwilling to burn his bridges behind him For a long time he believed that he would be reinstated as Pensionary of Rotterdam once Prince Maurice’s younger brother and heir, Prince Frederic Henry, had established himself in power Grotius returned to Holland in October 1631 in order to force a breakthrough in the negotiations about his possible rehabilitation His ostentatious visits to Rotterdam and H.J.M Nellen, Hugo de Groot:Een leven in strijd om de vrede, 1583-1645 (Uitgeverij Balans, 2007) 25225; De Hollandse jaren van Hugo de Groot (1583-1621) ed H.J.M Nellen and J Trapman (Hilversum: Verloren Publishers, 1996); Jan den Tex, Oldenbarnevelt trans R.B Powell vols (Cambridge: CUP, 1973) 5 Amsterdam badly backfired, however In April 1632, the States of Holland exiled him once more and put a price of 2,000 guilders on his head The definitive breach with his homeland came after two unhappy years in Hamburg Grotius accepted the offer of the Swedish chancellor Axel Oxenstierna to become the resident Swedish ambassador in Paris In the context of the Thirty Years War, this was an important and sensitive position: after the death of king Gustavus Adolphus, the Swedish armies in Germany were essentially kept afloat with French subsidies It was Grotius’ job to maintain good relations with the French ally, particularly Cardinal de Richelieu He discharged this task for nearly ten years, albeit with uneven success, due to French opposition to his appointment He was finally recalled by the Swedish government in January 1645 and arrived in Stockholm five months later He refused to become one of Queen Christina’s privy councillors, however, and took the first ship back to France After a storm-ridden voyage across the Baltic, his ship was wrecked off the Pomeranian coast in August 1645 Although Grotius safely reached the shore, he died at an inn in Rostock, aged 62 He was buried in the family crypt in the New Church in Delft.10 Grotius’ Nachleben in the Low Countries Grotius’ star waxed and waned in the Dutch Republic and its successor state, the Kingdom of The Netherlands, for over four centuries The Remonstrants, who remain a religious minority in The Netherlands, have claimed Grotius as a ‘martyr for toleration’ Grotius’ descendants sympathized with their cause At the turn of the eighteenth century, two Remonstrant divines gained unprecedented access to Grotius’ papers and wrote a 300-page biography of their hero, still considered authoritative today They focused on Grotius’ attempts to resolve the religious crises of his age, at the expense of other aspects of his life and work, such as his advocacy of VOC interests In the later eighteenth century, Grotius became the darling of the Dutch Patriots, the political opponents of William V of Orange The Dutch Patriots sought to reform the government of the Dutch Republic along democratic lines and reduce the power of the Stadtholder or abolish the 10 Nellen, Hugo de Groot 226-262, 271-277, 317-331, 364-405, 470-475, 532-550, 580-592; Martine Julia van Ittersum, 'The Long Goodbye: Hugo Grotius and the Justification of Dutch Expansion Overseas (16041645)', History of European Ideas 36 (2010) pp 386-411 6 office entirely For them, Grotius was a noble defender of republican government and freedom, who had fallen victim to the power hungry Princes of Orange The only complicating factor was that Grotius’ descendants in Rotterdam had meanwhile become clients of the Stadtholder! As a result of Prussian intervention, the Patriot Revolution was crushed in 1787 However, exiled Patriots would return to positions of power in The Netherlands in 1795, in the wake of the French Revolutionary Armies They brought their idealized image of Grotius with them As a ‘martyr for freedom’, he became part of the ideological pedigree of the Batavian Republic, a sister republic of the French Republic Grotius’ newfound popularity did not survive Napoleon’s fall in 1813 The establishment of the new Kingdom of The Netherlands discouraged any talk of the republican heroes of yore The political elite of The Netherlands, both former Orangists and Patriots, wished to portray itself as being united in the service of King William I, the eldest son of the last Stadtholder The disestablishment of the Dutch Reformed Church in 1851 also ended the Remonstrant crusade for equal rights Consequently, there was less need to appeal to Grotius’ alleged legacy of toleration At the same time, Grotius’ descendants lost control of his material legacy: 30-odd volumes of manuscripts—family heirlooms for over two centuries—were auctioned in The Hague in November 1864 The main buyers were the Swedish Government, the Remonstrant Church in Rotterdam, the Municipal Archives of Rotterdam, the Dutch National Archives, Leiden University Library and Johan Pieter Cornets de Groot van Kraayenburg (1808–78), a scion of the cadet branch of the family The Dutch government made no attempt to buy or preserve this unique collection of manuscripts This lack of interest in Grotius and his material legacy would change dramatically as a result of the rise of international law in the late nineteenth century, which turned Grotius into a Dutch national hero as well as a father of international law.11 A reburial of sorts took place in the vestry of the New Church in Delft on 18 October 1889 The gentlemen present, all wearing full dress, were the Keeper of the Royal Crypt, 11 Hugo Grotius, Meletius, sive, De iis quae inter Christianos conveniunt epistola, ed with transl., commentary and introd by Guillaume H.M Posthumus Meyjes pp 6-7; Henk Nellen, ‘Confidentiality and Indiscretion: The Intricacies of Publishing Grotius’ Correspondence Posthumously’, Produktion und Kontext: Beiträge der Internationalen Fachtagung der Arbeitsgemeinschaft für germanistische Edition im Constantijn Huygens Instituut, Den Haag, bis März 1998 ed H.T.M van Vliet (Tübingen: Max Niemeyer Verlag, 1998) pp 135-144, Caspar Brandt and Adriaan van Cattenburgh, Historie van het Leven des Heeren Huig de Groot vols (Dordrecht, 1727) 7 the burgomaster and aldermen of Delft, and J A W L Cornets de Groot van Kraayenburg (1862–1923), grandson and heir of J P Cornets de Groot van Kraayenburg.12 In a short ceremony, Grotius’ remains were transferred into a new leaden casket, which, in turn, was put into a ‘beautifully carved’ oak coffin, sealed with a ribbon of yellow, black and red— the armorial colours of the Cornets de Groot lineage Grotius’ coffin had also been opened a century earlier, at the time of the burial of his great-great grandson, the Rotterdam burgomaster Hugo Cornets de Groot At that point, a small copper plaque had been affixed to Grotius’ coffin, bearing the inscription: ‘het gebeente van H.d.G.’ (‘the remains of H[ugo] d[e] G[root]’) The ceremony in May 1777 had been a private family affair By contrast, the reburial in October 1889 was a minor media event, reported in several local and national newspapers It followed hard upon the heels of the unveiling of the Grotius statue in the Delft market square three years earlier, and a commemoration in the New Church in April 1883 of the tercentenary of Grotius’ birth The man and the myth were fast becoming public property Dutch nationalism, American enthusiasm and the rise of modern international law were the three most important factors in the making of Grotius’ modern image.13 The 1899 Hague Peace Conference The 1899 peace conference in The Hague sealed Grotius’ twentieth-century reputation as ‘father of international law’ In August 1898, the Russian Tsar invited other European governments to join him in what he called ‘the maintenance of general peace and a possible reduction of the excessive armaments which weigh upon all nations’ 14 The Russian government’s deteriorating financial position and the growth of German military 12 Martine Julia van Ittersum, ‘Confronting Grotius’ Legacy in an Age of Revolution: The Cornets de Groot Family in Rotterdam, 1748-1798’, English Historical Review CXXVII no 529 (Dec 2012) 1367-1403; Catalogue de Manuscrits Autographes de Hugo Grotius, second edition, ed W.J.M van Eysinga and L.J Noordhoff (The Hague: Martinus Nijhoff, 1952); L.J Noordhoff, Beschrijving van het zich in Nederland bevindende en nog onbeschreven gedeelte der papieren afkomstig van Huig de Groot, welke in 1864 te 'sGravenhage zijn geveild (Groningen: Noordhoff, 1953) pp 7-14 On J.P Cornets de Groot van Kraaijenburg, see http://www.parlementairdocumentatiecentrum.nl/id/vg09llj55bt3 13 Royal Library, The Hague, Cornets de Groot Archive, CdG 17 f 60-61, 122-125, 130-131 14 As cited by Barbara Tuchman, The Proud Tower: A Portrait of the World Before the War, 1890-1914 (Macmillan, 1966) p 239 8 and naval power were important considerations for the young ruler Initially, his diplomatic initiative met with strong reservations in Western Europe The one exception was the Dutch government, which responded enthusiastically to the tsar’s proposals In January 1899, the Russian Foreign Secretary asked his Dutch counterpart to host the proposed peace conference in The Hague Four months later, the delegates of 25 countries, including China, Japan, Thailand, Persia, Turkey, Mexico and the US met at the conference venue, the royal palace Huis Ten Bosch (House in the Woods) Expectations were low The head of the American delegation, Andrew Dickson White— American ambassador in Berlin and founding president of Cornell University—noted: ‘probably, since the world began, never has so large a body come together in a spirit of more hopeless scepticism as to any good result’ Yet a strong sense of historical mission and a spirit of teamwork and collegiality resulted in an unexpected breakthrough in late July: the establishment of the Permanent Court of Arbitration (PCA), which still exists today White was convinced that the Grotius commemoration in Delft on July 1899, organized by the American delegation, had materially contributed to this success.15 That is probably too simplistic an explanation for the establishment of the PCA According to Arthur Eyffinger, the conference delegates were aided in their deliberations by a busy social schedule, which allowed to exchange ideas and opinions ‘off the record’.16 Dutch government authorities and foreign embassies in The Hague organized a seemingly endless round of lunches, teas, receptions, dinners, concerts, balls and excursions—on average one social event every other day White came up with the brilliant idea to organize a Grotius commemoration, a real propaganda coup for the young American republic It became an iconic event—not least because of American selfpublicity—which firmly tied Grotius’s legacy to modern international law and confirmed Dutch-American friendship, embedding the history of both countries in the seductive narrative of the progress of Western civilization.17 15 Eyffinger, The 1899 Hague Peace Conference pp 15-40, 70-202; Calvin De Armond Davis, The United States and the First Hague Peace Conference (Ithaca, New York: Cornell University Press, 1962) p 90 16 Eyffinger, The 1899 Hague Peace Conference pp 318-333 17 Eyffinger, The 1899 Hague Peace Conference pp 313-316, 415-419 9 What made the celebration of Dutch history and culture so attractive to White? In her book Holland Mania (1998), Annette Stott examines the fetishism for all things Dutch among the urban elites of the United States during the Gilded Age Americans who claimed pre-Revolutionary Dutch descent organized themselves in exclusive ethnic associations, such as the Holland Society of New York, founded in 1885.18 Wealthy industrialists became serious collectors of the artwork of the Dutch Golden Age The fishing villages of Volendam and Marken, just north of Amsterdam, became open-air museums, largely thanks to American tourism Houses, furniture and clothing were adapted to what foreign visitors, fresh from a visit to the Rijksmuseum in Amsterdam, imagined the Dutch Golden Age to have been like Yet Americans were not just attracted to the aesthetics of seventeenth-century Dutch paintings There was an ideological component as well John Lothrop Motley (1814–77), a Boston Brahmin and Harvard graduate, became the first American historian to archival research on Dutch history 19 It resulted in two very influential publications: The Rise of the Dutch Republic (1855) and History of the United Netherlands (1867) Thanks to Motley, Americans could celebrate the Dutch as a kindred people The Dutch had thrown off the yoke of royal government in 1581, established a highly successful Protestant republic—but one tolerant of other religions—and, not coincidentally, created a global trading empire In October 1903, the Dutch-born Edward Bok (1863–1930) confidently announced to the millions of readers of Ladies’ Home Journal that Holland, not England, was ‘the mother of America’ The notion that all truly American characteristics and ideals originated in Holland was an important incentive for White to organize the Grotius commemoration in Delft on Independence Day 1899.20 18 Annette Stott, Holland Mania: The Unknown Dutch Period in American Art & Culture (Woodstock, NY: The Overlook Press, 1998) passim (Edward Bok quoted on p 9) 19 Mark A Peterson, ‘A Brahmin Goes Dutch: John Lothrop Motley and the Lessons of Dutch History in Nineteenth-Century Boston’ in: Going Dutch: The Dutch Presence in America, 1609-2009 ed Joyce D Goodfriend, Benjamin Schmidt and Annette Stott (Leiden: Brill Publishers, 2008) pp 109-134 20 Nancy T Minty, ‘Great Expectations: The Golden Age Redeems The Gilded Era’ in Going Dutch: The Dutch Presence in America, 1609-2009 ed Goodfriend, Schmidt and Stott pp 215-235; Dennis P Weller, ‘ Old Masters in the New World: The Hudson-Fulton Exhibition of 1909 and its Legacy’ in: Going Dutch: The Dutch Presence in America, 1609-2009 ed Goodfriend, Schmidt and Stott pp 237-268; Laura Voorkles, ‘Return in Glory: The Holland Society Visits ‘The Fatherland’’ in: Dutch New York: The Roots of Hudson Valley Culture ed Roger Panetta (Fordham University Press, 2009) pp 257-297; Roger Panetta, ‘The Hudson-Fulton Celebration of 1909’ in: Dutch New York: The Roots of Hudson Valley Culture ed Panetta pp 301-338 10 A Dutch-American Party We can follow the preparations for the Grotius commemoration in White’s Autobiography (1905) Following a tourist trip to Delft in late May 1899, he confided to his journal: ‘of all books ever written—not claiming divine inspiration—the great work of Grotius on ‘War and Peace’ has been of most benefit to mankind’ He wrote privately to John Hay (1838–1905), the American Secretary of State, asking permission for the American delegation to ‘lay a wreath of silver and gold upon the tomb of Grotius at Delft’ When he received a positive reply from Washington DC on 19 June, he immediately telegraphed his specifications for the wreath to the American embassy in Berlin The next day, he approached the head of the Dutch delegation at the peace conference, A P C van Karnebeek (1836–1925), who responded enthusiastically to the American plans He suggested that the Dutch Foreign Secretary (and Honorary President of the peace conference) be involved as well W H de Beaufort (1845–1918) was ‘devoted to the memory of Grotius’ He had delivered a long panegyric on the occasion of the unveiling of the Grotius statue in Delft in September 1886, for example The American delegation duly visited De Beaufort to hammer out the logistics of the 1899 Grotius commemoration: a solemn ceremony in the New Church at 11 AM, followed by a luncheon for invited guests in the Delft City Hall On July, the military attaché of the American embassy in Berlin arrived in The Hague with the ‘Grotius wreath’, made by Court jeweler Eugene Marcus It displayed the arms of the Netherlands and the United States, along with the following inscription: To the Memory of Hugo Grotius; In Reverence and Gratitude, From the United States of America; On the Occasion of the International Peace Conference of The Hague 11 July 4th, 1899 White noted in his journal that the wreath was ‘a superb piece of work’, attracting ‘most favorable attention’ Everything was ready for the grand finale two days later.21 The Grotius commemoration was widely reported by Dutch newspapers It featured in three New York Times articles as well At 10.15 AM, the organist of the New Church started playing a series of national songs, including ‘Yankee Doodle Dandy’ According to New York Times reporter Mrs Hanken-Parker, carriage after carriage rolled up to the door of the church, dislodging ‘gayly dressed ladies and profusely decorated men’ The entire Dutch government arrived to participate in the ceremony, as did most of the peace conference delegates, and nearly all ambassadors resident in The Hague In addition, the pews filled with faculty members from Dutch universities, Leiden in particular, and a large crowd of American tourists At 11 AM, an occasional choir of approximately 150 singers performed Mendelssohn’s ‘How lovely are the messengers that bring us good tidings of peace’ At the request of the American delegation, Van Karnebeek opened the proceedings Following a second musical interlude, White rose to deliver his laudation 22 By honoring the writer of De Jure Belli ac Pacis, so White informed his audience, the US did not just express her own gratitude, but also spoke on behalf of ‘every part of Europe, of all the great powers of Asia, [and] of the sister republics of North and South America’ Significantly, White failed to mention Africa According to the prominent international lawyers of the day, a certain degree of ‘civilization’ was required for statehood It explains White’s assertion that ‘the sisterhood of nations’ included countries ‘yet unborn’ 21 Andrew Dickson White, Autobiography (London: Macmillan, 1905) Vol II pp 274, 291, 316, 317-318, 320, 322-26; Eyffinger, The 1899 Hague Peace Conference pp 165-169, 196-202, 324-331; J Woltring, 'Karnebeek, jhr Abraham Pieter Cornelis van (1836-1925)' and H van der Hoeven, 'Beaufort, Willem Hendrik de (1845-1918)' in Biografisch Woordenboek van Nederland URL:http://www.historici.nl/Onderzoek/Projecten/BWN/lemmata/bwn1/karnebeekapc [10-02-2012] and URL:http://www.historici.nl/Onderzoek/Projecten/BWN/lemmata/bwn1/beaufort [10-02-2012] For Dutch newspaper reports on the unveiling of the Grotius statue in Delft on 25 Sept 1886, see Royal Library, The Hague, Cornets de Groot Archive CdG 17 fol 64-66, 69-70, 77 22 Royal Library, The Hague, Cornets de Groot Archive, CdG 17 folios 50, 51-52, 97, 99, 100, 109-110; Mrs Hanken-Parker, ‘A TRIBUTE TO HUGO DE GROOT’, New York Times, Jul 30, 1899; Eyffinger, The 1899 Hague Peace Conference pp 326-327 12 in Grotius’ time (the US!) and countries ‘now civilized…which Grotius knew only as barbarous’—probably a reference to the peace conference delegates from the Ottoman Empire, Russia, Persia, China and Japan What was on full display in White’s speech was, of course, the Whig interpretation of history a story of ‘continuous progress’, underpinned by Protestantism, tolerance, freedom and democracy When the Pilgrim Fathers sailed from Delftshaven in 1620, they had allegedly taken Dutch notions of religious toleration to the New World —Grotius’ notions, of course In no other country, so White noted, had his teachings penetrated more deeply than in the US Its inhabitants had been thoroughly imbued with ‘those feelings of mercy and humanity which Grotius, more than any other, brought into the modern world’ Indeed, the concept of arbitration between states could be found in a single sentence in De Jure Belli ac Pacis (book 2, ch 23): ‘But especially are Christian kings and states bound to try this way of avoiding war’.23 In White’s view, Grotius’ reasoning informed the Geneva Arbitration of 1872 that had settled the Alabama Claims, ensuring friendly relations between the US and UK (For the assistance given to the Confederate cause, the UK paid the US $15.5 million in damages.) White concluded his laudation with Grotius’ supposed words of encouragement to the peace conference delegates: From this tomb of Grotius I seem to hear a voice which says to us as the delegates of the Nations: ‘Go on with your mighty work Go on with the work of strengthening peace and humanizing war: give greater scope and strength to provisions which will make war less cruel: perfect those laws of war which diminish the unmerited sufferings of populations: and, above all, give the world at least a beginning of an effective, practicable scheme of arbitration.24 He then affixed the wreath to Grotius’ tomb It is still there today 25 23 Herbert Butterfield, The Whig Interpretation of History (1931); Hugo Grotius, The Jure Belli ac Pacis Libri Tres, vols., Classics of International Law, no (Oxford: Clarendon Press, 1925) Vol II: A Translation of the Text, by Francis W Kelsey p 563 (DJBP, Lib II, cap XXIII, ‘De Causis Dubiis’) 24 Royal Library, The Hague, Cornets de Groot archives, CdG 17 folios 50-52; Hanken-Parker, ‘Homage to Hugo Grotius’, New York Times, July 1899 and ‘The Hugo Grotius Celebration New York Times, Sep 1899; Eyffinger, The 1899 Hague Peace Conference pp 328-329; Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (CUP, 2001) 25 On July 4, 2012, the tenth anniversary of the International Criminal Court was celebrated in the New 13 De Beaufort was entrusted with the pleasurable task of thanking the American delegation and government In his speech, he emphasized the historical links between the US and The Netherlands The Dutch had been the first European settlers in the Hudson Valley, and the first to recognize American independence, thanks to a salute fired from Fort Orange at St Eustatius –a Dutch possession in the Caribbean in November 1776 De Beaufort expressed the hope that the wreath affixed to Grotius’ tomb would be ‘an everlasting emblem’ of the friendly relations between the two countries Tobias M C Asser (1838–1913), professor of private international law at the University of Amsterdam, spoke in his capacity as president of the Institut de Droit International/ Institute of International Law Asser congratulated the American delegation with the tribute paid to ‘the father of our science’ The American delegate Seth Low (1850–1916), President of Columbia University, concluded the proceedings He also emphasized the historical links between the US and The Netherlands In his view, the Dutch had taught Americans ‘to separate Church and State’, and continued to inspire ‘devotion to learning, to religious liberty, and to individual and national freedom’ High praise indeed, but was it true? We will return to that question later on in this essay chapter.26 The audience left the New Church to the tunes of ‘Star Spangled Banner’ Three hundred and fifty invited guests walked across the market square to the Delft City Hall, where they enjoyed a historically themed luncheon, including ‘filets de soie la Grotius’ and ‘poulardes la Washington’ The American delegates and Dutch authorities raised many a glass to each other In her New York Times article, Hanken-Parker accentuated the connections between the Dutch past and American present The Delft city councilor who toasted White in garbled English was considered a perfect resemblance of Peter Church in Delft by the International Criminal Court Student Network and the Department of Philosophy and Religion at Central Michigan University Prof Hope Elizabeth May of Central Michigan University arranged for a special cleaning of the 1899 sterling silver wreath, which had oxidized quite badly It is now back at Grotius’ tomb in all its splendour More details can be found on http://www.agrotianmoment.com I would like to thank Prof May and Prof Andrew Blom for sharing this information with me 26 Royal Library, The Hague, Cornets de Groot Archive, CdG 17 folios 50-52; Hanken-Parker, ‘A TRIBUTE TO HUGO DE GROOT’; White, Autobiography Vol II, pp 327-328; Eyffinger, The 1899 Hague Peace Conference pp 199-200, 327, 330 14 Stuyvesant (1592–1672), the last director-general of Dutch New York Still, it remained an Independence Day celebration Hanken-Parker noted that the US ambassador in The Netherlands, Stanford Nevell, had gone from table to table in the Delft City Hall in order to touch the glass of every American visitor, saying quietly: ‘we are all over here to-day, but in our hearts we are with the rest of them in our own land; so here’s “to home”’.27 How to Interpret the Grotius Commemoration of July 1899 I have elaborated on the events in Delft in July 1899 in order to highlight the three factors at play in the creation of Grotius as ‘father of international law’: 1) the conceptualization of the Dutch past by American historians and government officials 2) the importance of the Dutch Golden Age for Dutch nation-building in the nineteenth and twentieth centuries 3) the role played by the Institut de Droit International and the rise of modern international law more generally Let me explain this at greater length It was back to the future for White and HankenParker The Dutch Golden Age was the precursor of the nineteenth-century American present Allegedly, the Dutch had exported to Colonial New York religious toleration, a thirst for liberty, republicanism, democracy, etc.— everything that was quintessential American according to Gilded Age politicians and intellectuals In 1872, Motley had joined King William III of The Netherlands in celebrating the third centennial of the Sea Beggar’s capture of Brill Arguably, it was this intense American interest in the Dutch Golden Age that contributed to a new taxonomy of historical figures and events The sixteenth-century Dutch Revolt became a ‘War of Independence’, for example Grotius the alleged champion of freedom and toleration fitted right in with this story of historical 27 Idem Stanford Newell was a member of the Republican Party and practiced law in St Paul (MN) for many years In 1897, he was appointed Envoy Extraordinary and Minister Plenipotentiary to the Netherlands In 1899 he was part of the U.S Delegation to the Hague Peace Conference He resigned as US ambassador in The Netherlands in 1905 15 progress, culminating, of course, in the birth of the United States of America.28 Grotius was part of other, equally powerfully historical narratives as well He became a Dutch national hero at the end of the nineteenth century The Grotius commemorations of April 1883 and September 1886 had been presented in Dutch newspapers as important manifestations of national unity The Kingdom of The Netherlands had moved beyond the religious and political infighting characteristic of the Dutch Republic –or so the story went Dutchmen of all faiths could now come together in Delft to celebrate Grotius’ alleged legacy of religious toleration There were no more Republicans and Orangists: descendants of the regent families loyally served the new monarchy The House of Orange was above party politics, and actively sought to nurture national unity and reconciliation When, in 1878, the Dutch branch of the Association for the Reform and Codification of International Law first broached the idea of rendering ‘national homage’ to Grotius, it found an enthusiastic supporter in Prince Alexander (1851–84), the third son of King William III of The Netherlands The ruling elite of the Kingdom of the Netherlands was determined, then, to incorporate all the great statesmen of the Dutch Golden Age into the national canon—Oldenbarnevelt, Grotius and the De Witt brothers as well as the Stadtholders.29 In the 1890s, it suited Dutch politicians very well that Grotius was not just a Dutch national hero, but also fast becoming a ‘father of international law’ They have paid homage to Grotius as a symbol of the country’s civilizing ever since In the first half of the nineteenth century, the ruling elite of the Kingdom of The Netherlands faced the awkward question whether a small, truncated country stood any chance of survival in a continent dominated by big nation-states The Liberal ascendancy in the second half of the nineteenth century brought a solution of sorts: even as second- or third-rank power in 28 David Armitage, The Declaration of Independence: A Global History (Harvard University Press, 2007); Remco Ensel, ‘Baudrillard in Brielle De historische cultuur van de Tachtigjarige Oorlog’, Tijdschrift voor geschiedenis Vol 121, (2008) 40-55 29 Royal Library, The Hague, Cornets de Groot Archive, CdG 17 fol 144-147, 150-152; N.C.F Van Sas, De metamorfose van Nederland: Van oude orde naar moderniteit, 1750-1900 (Amsterdam University Press, 2005); Wim Vroom, Het wonderlid van Jan de Wit en andere vaderlandse relieken (Nijmegen, Sun Publishers, 1997); J.Th.M Bank, Het roemrijk vaderland: Cultureel nationalisme in de negentiende eeuw (The Hague: SDU publishers, 1990) 16 Europe, Dutch politicians told themselves, the Kingdom did have a manifest destiny in international politics Its overarching moral purpose was to reduce armed conflict in Europe and, to a lesser extent, around the world This particular brand of Dutch nationalism has been inextricably intertwined with the rise of modern international law and the establishment of international courts in The Hague Peaceful conflict resolution is in the interest of small powers The Dutch could not compete in the European arms races that preceded World War I and World War II, for instance But it is always nice to tell yourself that you occupy the moral high ground Grotius has proven an ideal mascot for the Dutch government and legal profession To give just one example, the Dutch Prime Minister Jan Peter Balkenende could not resist referencing him at the inaugural session of the International Criminal Court in The Hague on 11 March 2003 In Balkende’s view, the ICC was a realization of Grotian ideals Allegedly, the author of De Jure Belli ac Pacis had sought to create a system of international law, with clear agreements and procedures for countries to comply with He believed that a system of this kind was necessary for international justice and stability Today, ladies and gentlemen, nearly four centuries later, we move a step closer to that ideal.30 The Dutch government, then, continues to affirm Grotius’ alleged importance as ‘father of international law’ Two myths are feeding off each other: Dutch nationalism/internationalism and the self-understanding of modern international law as a narrative of historical progress—allegedly, we are moving closer to the ideal of ‘international justice and stability’.31 Why did international lawyers select Grotius as their ‘founding father’ in the late 30 Balkende’s speech is available on the website of the Coalition for the ICC, see http://www.iccnow.org/documents/NetherlandsPM11March03.pdf; on Dutch foreign policy in the Interbellum period, particularly with regarding the League of Nations, see Remco van Diepen, Voor Volkenbond en vrede : Nederland en het streven naar een nieuwe wereldorde 1919-1946 (Amsterdam: Bert Bakker Publishers, 1999); on Jan Peter Balkenende, see http://www.parlement.com/id/vg09lljrp5z5/j_p_jan_peter_balkenende 31 Koskenniemi, The Gentle Civilizer of Nations, passim 17 nineteenth century? As noted earlier, Asser spoke at the Grotius commemoration in July 1899 in his capacity as President of the Institut de Droit International As Martti Koskenniemi shows, international lawyers at the time aspired to be the legal conscience of the civilized world The history of international law was conceived of as a morality tale, played out in European history: ….a story of individual lawyers acting like so many chivalrous knights, defending the oppressed against the oppressors, peace against war, carrying the torch of civilization (from Greece and Rome) through dark ages to the present It was not kings or diplomats, but writers and scientists who finally woke up ‘das schlummerende Rechtsbewusstsein der civilisierten Welt’.32 It explains what made Grotius such an attractive historical figure He was a burgher of Delft and a properly married man, who had sired eight children with his wife of thirtyseven years, Maria van Reigersberch His private life conformed to the ideals of the upper bourgeoisie in nineteenth-century Western Europe, the class into which most international lawyers were born But there was more Grotius was a Protestant who appeared to have embraced religious toleration –not exactly common in seventeenth-century Europe Had he not defended the Remonstrants, victims of religious hatred, from the nasty orthodox Calvinists? Surely, it was his moral and intellectual superiority that allowed him to prevail over adversity —three years of captivity at Loevestein Castle, followed by twenty-four years of exile Had he not sought to humanize war and further the cause of peace in De Jure Belli ac Pacis? If true, this added up to a perfect ‘founding father’, from the perspective of international lawyers in the late nineteenth century, of course Recent research portrays Grotius in a rather different light, however In 2007, Henk Nellen published the most authoritative biography of Grotius to date: 32 Idem p 78 In this passage, Koskenniemi cites Johan Caspar Bluntschli, Das moderne Völkerrecht der civilisierten Staaten als Rechtsbuch dargestellt (third edition, Nördlingen, Beck, 1878) p 18 On the same page, Bluntschli calls Grotius the spiritual father (geistige Vater) of modern international law 18 Hugo de Groot: Een leven in strijd om de vrede, 1583–1645/Hugo Grotius: A Lifelong Struggle for Peace, 1583–1645 Nellen has also completed the modern, 17-volume edition of Grotius’ correspondence, comprising nearly 7,500 documents.33 What these letters tell us? We are confronted with a man who apparently cared more for the unity of the Christian churches than anything remotely resembling ‘a system of international law’ Grotius considered it his God-given task to heal the religious divisions of Christendom He tried to apply sophisticated philological techniques to Biblical exegesis, in a vain attempt to arrive at a set of core doctrines, shared by all Christians Grotius attached far less importance to issuing new and improved editions of De Jure Belli ac Pacis (1631, 1642, and 1646) than to publishing his Annotations on the Old and New Testament (1641, 1644 and 1646) These massive Biblical commentaries, running into thousands of pages, were a lifelong project for Grotius, undertaken out of gratitude for the divine assistance that he thought he had received in escaping from Loevestein Castle.34 Grotius’ doomed efforts to unite the Christian churches have little in common with modern notions of religious toleration and non-discrimination Separation of church and state was inconceivable to Grotius He admired the Anglican Church precisely because it was a state church, run by bishops appointed by a monarch, rather than by unruly Calvinist ministers As a dyed-in-the-wool Erastian, he believed that the secular authorities should have the final say in the appointment of clergymen, in church government, and even in matters of doctrine The Remonstrants said to all of this They had little choice during the Twelve Years Truce: a minority in the Dutch Reformed Church, they were totally dependent on the secular authorities for protection against the majority of orthodox Calvinists Initially, Grotius presented himself as an impartial mediator between the two camps Yet his claims rang increasingly hollow as the religious and political crisis deepened, resulting in the Stadtholder’s coup d’état of August 1618 None of this has anything to with the separation of church and state that is the norm in the Western World today, let alone with a principled toleration of a 33 34 See footnotes and Nellen, Hugo de Groot pp 348-354, 251-262, 429-438, 487-498, 506-531 19 diversity of beliefs, religious or otherwise.35 On the basis of his dramatic life story, could it not be argued, however, that Grotius triumphed over adversity thanks to his moral and intellectual superiority? Modern research paints a rather different picture Grotius was no hapless victim of the political calamity of August 1618, but made choices of his own, which ultimately proved to be the wrong ones By claiming the moral high ground and refusing to contemplate compromises of any sort, he did not just cause problems for himself, but also for his direct relatives Grotius’ political record is the subject of his Verantwoordingh van de Wettelijkcke Regieringh van Holland ende West-Vrieslandt/Justification of the Rightful Government of Holland and West-Friesland (1622) If we may believe this pamphlet, Grotius had simply followed the orders of Oldenbarnevelt and the Rotterdam town government, and been an honest broker between factions These claims were half-truths at best In reality, Grotius had been a party man: he had coordinated the political activities of Remonstrant-dominated town governments in Holland As Pensionary of Rotterdam, he had belonged to Oldenbarnevelt’s inner circle of political advisers One of the most powerful men in the Dutch Republic during the Twelve Years Truce, he had played for high stakes and lost That does not make him a martyr Moreover, when Prince Frederic Henry of Orange became Stadtholder in 1625, there was a real chance of political rehabilitation If Grotius had asked for a pardon, he would have been allowed to return home That was the sticking point, of course Grotius’ sense of honour deterred him from requesting one Exile was a choice of sorts on his part That, together with his endless polemics with orthodox Calvinists, served to damage the career prospects of his family members in Holland It cost his younger brother Willem de Groot a prestigious appointment as Pensionary of Delft, for example Grotius’ direct relatives were the real victims of the high drama of his life.36 Then there is the little issue, often overlooked, of Grotius’ commitment to Dutch 35 Nellen, Hugo de Groot pp 109-251, 339-353, 419-438, 451-454; see also Hugo Grotius, Theologian: Essays in Honour of G.H.M Posthumus Meyjes ed H.J.M Nellen and Edwin Rabbie (Leiden: Brill, 1994) 36 Nellen, Hugo de Groot pp 109-262, 317-323, 360-361,364-379, 457-470, 474-475, 480-483 20 imperialism Supposedly, the manuscript of De Jure Praedae –written at the behest of the VOC directors is only important in so far as it prepares the way for the true magnum opus, De Jure Belli ac Pacis Moreover, international lawyers in the late nineteenth century believed that European colonial empires brought much-needed civilization to benighted natives Even when evidence became available of ethnic cleansing in, for example, Africa, members of the Institut de Droit International persisted in defending the colonial policies of their own national governments The evils of Western imperialism and colonialism remained a blind spot in modern international law until the Second World War at least No wonder that its practitioners could not see the darker sides of Grotius either Recently, a lot of work has been done on the interrelationship between the rise of international law and European overseas expansion I only need to point to Antony Anghie’s ground-breaking Imperialism, Sovereignty and the Making of International Law.37 The work of David Armitage at Harvard University,38 Lauren Benton at NYU,39 Peter Borschberg at the National University of Singapore,40 and John Cairns at the University of Edinburgh,41 to name a few, is aimed at recovering the imperial contexts of early modern natural law and natural rights theories My own research shows that Grotius was at the beck and call of the VOC directors in the period 1604–-1615, and that, even as an exile in Paris, he continued to support Dutch expansion overseas Both Richelieu and Oxenstierna valued his expertise in commercial governance In December 1626, the States of Holland met to discuss the very real danger of Grotius divulging to foreign governments his vast knowledge of ‘the fisheries and navigation of these provinces, and particularly of VOC policy’ In the end, Grotius decided against sellingout to Richelieu As Swedish Ambassador in Paris, he had no qualms about sending 37 Antony Anghie, Imperialism, Sovereignty and the Making of International Law, Cambridge Studies in International and Comparative Law (CUP, 2005); Koskenniemi, Gentle Civilizer of Nations ch 38 David Armitage, Foundations of Modern International Thought (CUP, 2013) 39 Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (CUP, 2002) and A Search for Sovereignty: Law and Geography in European Empires, 1400-1900 (CUP, 2010) 40 Peter Borschberg, The Singapore and Melaka Straits: Violence, Security and Diplomacy in the 17th Century (NUS Press, 2010) and Hugo Grotius, the Portuguese, and Free Trade in the East Indies (NUS Press, 2011) 41 John Cairns, ‘After Somerset: The Scottish Experience’, Journal of Legal History 33, issue 3, Dec 2012, 291-312, and ‘Stoicism, Slavery, and Law: Grotian Jurisprudence and Its Reception’, Grotiana (New Series) vol 22/23 (2001-02) 197-232 21 Oxenstierna regular updates on Dutch exploits in the East and West Indies, however He obtained his information from his relatives in Holland Both Willem de Groot and Grotius’ second son, Pieter de Groot, served as VOC lawyers, for example As a quid pro quo, he continued to offer policy suggestions and legal advice to the VOC All through his life and career, Dutch imperialism and colonialism remained a cause close to his heart.42 Grotius the anti-hero To conclude, Grotius as a founding father of international law is a historical construct, now well past its sell-by date It would be far more appropriate to call him the godfather of Dutch imperialism, for example The commemoration of 1899 was an American initiative that tied in beautifully with a) the creation of a national canon for the Kingdom of The Netherlands and b) the self-understanding of international lawyers of the time Grotius became the proverbial knight on a white horse, who assisted the oppressed (the Remonstrants), triumphed over adversity (imprisonment at Loevestein Castle), and supposedly sought to humanize war in De Jure Belli ac Pacis The establishment of international courts in The Hague has been a great boon for the Dutch government in the twentieth and twenty-first centuries Internationalism is a wonderful raison d’être for small countries unable or unwilling to compete militarily in a big, bad world of oversized nation-states No wonder that the Dutch government keeps propping up Grotius as the patron saint of the Peace Palace It is surprising, however, that the judges of the various international courts have mounted so few challenges to the Grotius Delusion An increasing number of them have not been born and raised in the West Perhaps they are too polite to speak out against their hosts? Recent research has shown Grotius’ legacy to the modern world to be far more complex, and far more interesting, than imagined by many international lawyers, both then and now Nellen rightly emphasizes Grotius’ abiding interest in the reconciliation of the 42 Van Ittersum, 'The Long Goodbye' passim (quote from the States of Holland minutes, 21 Dec 1626, on p 395) and footnotes 8, 39 22 Christian churches and in applying sophisticated philological techniques to Biblical exegesis Thanks to the modern edition of Grotius’ correspondence, we have a much better sense of Grotius’ political responsibilities during the Twelve Years Truce and his central role in the Republic of Letters His letters also reveal the options open to him after his escape from Loevestein Castle in March 1621 He could have become involved in Richelieu’s colonial projects, for example Or he could have made the concessions necessary for obtaining a pardon from Prince Frederic Henry If he was a martyr for the cause, he made that choice himself Finally, his extant working papers in the Dutch National Archives and Leiden University Library are proof that his natural rights and natural law theories were conceived for the sole purpose of justifying Dutch expansion overseas We can now fit Grotius into the recent critique of modern international law as an ideology that at best ignored, or at worst fully supported, the dirty business of Western imperialism and colonialism