Introduction

There is a general perception that, traditionally, international law applied only to States.  States are considered the oldest and most important subjects of international law and all other subjects were recognised later. However, the writings of Hugo Grotius suggest that multinational corporations have not only operated beyond the boundaries of a State even before the Westphalian territoriality came into existence, but they also succeeded in making legal claims as the subjects of international law. In one of his talks with AfronomicsLAW, Professor Antony Anghie raised intriguing questions: is it possible that Hugo Grotius created international law for a corporation? It is well known that Grotius worked for the Dutch East India Company (VOC). However, little attention has been paid to the fact that he recognised corporations as subjects of international law. In this blog, the authors endeavor to build upon Anghie’s hypothesis and explore Grotius’s writing in the light of the controversy surrounding the capture of the Portuguese ship Santa Catarina by VOC captain Jakob Van Heemskerck.

International Legal Landscape Before Grotius    

Before exploring Prof. Anghie’s hypothesis, it seems important to highlight the international legal imagination in Europe before Grotius.  The Treaty of Tordesillas neatly divided the “New World” into land, resources, and people claimed by two catholic powers, i.e., Spain and Portugal.  On June 7, 1494, Spain and Portugal agreed to fix the boundary between their respective domains along a meridian 370 leagues west of the Cape Verde islands. This treaty was confirmed by Pope Julius II in the Bull Ea quae pro bono pacis (January 24, 1505), requested by Manuel I, King of Portugal, following the discovery of the sea route to India by Vasco da Gama (1498) and the landing of Pedro Alvares Cabral in Brazil (1500). They established two areas in which they would monopolise discovery, navigation, and trade. It is interesting to note that the Treaty of Tordesillas did not only divide the lands but also the ocean. The divided possession sanctioned by the treaty continued even when Spain and Portugal were united under a single king (King Philip II) between 1580-1640, until the treaty was superseded by the 1750 Treaty of Madrid.

Consequently, followed by the discovery of the routes to the East Indies, the Portuguese claimed monopoly over the route and any trade thereof. They began issuing licenses to merchants to trade in this region. A controversy emerged when the VOC captain captured the Portuguese carrack Santa Catarina on February 25 1603 in the Indian Ocean. The Portuguese argued that under the authority of the Pope, they had sovereignty over the land and the sea. Portuguese seem to claim monopoly on Indian Ocean trade routes on two grounds. Firstly, since they were the first to discover these routes, they have exclusive rights to use them. Second, the Pope gave exclusive authority to the Portuguese under the Treaty of Tordesillas.

 Grotius’s Legal Defence for the Dutch East India Company (VOC)

Hugo Grotius was hired by the Dutch East India Company (VOC) to justify their capture of a Portuguese ship, Santa Catarina, in the Indian Ocean. From the Portuguese perspective, the world was divided into two parts under the Treaty of Tordesillas and since they had discovered routes to the Indian Ocean, they had exclusive rights to trade. However, emerging protestant maritime powers like the United Provinces did not recognise the division of the world between two catholic monarchs.

Grotius had two-fold challenges – establishing that the Portuguese did not have jurisdiction over high seas and that a private company could also be engaged in lawful warfare. Here it must be noted that earlier, the notion of just war was limited to the States or the agents of the States. Therefore, private individuals or groups that conduct war without the permission of the State were considered guilty of treason.  

Once it was established that Van Heemskerck had engaged in a just war, Grotius could simply cite the law of war to show that he was entitled to reparations for injuries sustained by himself, his employers, and the Dutch Republic. Thus, after citing examples of harassment and intimidation, Grotius concluded that the capture of the Santa Catarina had been justified in order to obtain damages on behalf of his employer and the Estates General. Here, Grotius used the same template of the sovereign’s right to self-defence and just war, but extended their applicability to corporations such as VOC.

Edward Keene argues that there is a popular view that the most distinguished feature of Grotius’s writing is its commitment to the idea of a society of States. However, in reality, he adopted Kantian insistence on a world community of humankind.  Thus, he argued that ‘man was born a sovereign and free individual who could execute his own right.’ He further argued that companies might legitimately engage in a private war against other merchants, or even against the agents of a sovereign state, to enforce the natural law, which mandated freedom of trade and navigation. Since the right to self-defence made private individuals judges and executioners in their own cause, a company of merchants like the VOC must, under certain circumstances, also qualify as a full-fledged actor in international politics (p. xix). Here Grotius seems to argue that corporations possess legal personality under international politics and have the right to defend themselves even against a sovereign power.

When confronted by Portuguese harassment and intimidation, the VOC had every right to take up arms in order to safeguard its trade with Asian princes and peoples. Civil magistrates could not be expected to call the Portuguese to account on the high seas or in countries where judicial systems were either weak or nonexistent. Hence, it fell to the VOC to enforce freedom of trade and navigation in the East Indies and to punish Portuguese transgressions of the natural law by means of a just war.

Conclusion

In unraveling the role of corporations in early modern international law through the lens of Hugo Grotius’s writings, we find a significant departure from the conventional understanding of subjects of international law. Grotius’s defence of VOC paves the way for a contrapuntal reading of the history of international law – one that acknowledges the agency of non-state actors in shaping global governance. Thus, by shedding light on the historical roots of corporate agency in international affairs, this exploration opens avenues for reimagining the role of corporations in shaping the future of global governance.

1. Mohd Imran is a Lecturer at the Faculty of Shariah and Law at Villa College, Maldives. He is Programme Coordinator of LLB and LLM programs offered by the University of West of England, Bristol at Villa College.
2. Samnavi Narang is an Assistant Lecturer at the Jindal Global Law School (India) and Doctoral Candidate at the NALSAR, Hyderabad.