"The Ostend Company: Law of the Sea debates in the Age of Mercantilism" - Conference '300 Years Ostende Company', 23-24 November 2023 (original) (raw)

This paper explores the persisting tensions in the development of the law of the sea in the early eighteenth century by focusing on the case of the Ostend Company. Two opposing principles had emerged in the previous centuries, mare clausum (the closed seas) and mare liberum (the freedom of the seas). The doctrinal and diplomatic debates centred on whether states could exercise exclusive control over pelagic areas and to what extent, culminating with the publication of Hugo Grotius’s Mare liberum (1609) and John Selden’s Mare clausum (1635). What was at stake was the definition of the legal status of the sea as well as the regulation of its use, e.g. regarding seaborne trade and fisheries exploitation. Only at the end of the seventeenth century, the era of claiming exclusive sovereignty over extensive pelagic spaces was coming to an end. The policy of fixing exact boundaries for special purposes, either by international treaties or national laws, was taking its place. In this context of transition, the Dutch jurist Cornelius van Bynkershoek proposed a compromise between the ideas of freedom and dominion over the sea in the treatise De dominio maris dissertatio (1703). He suggested that coastal states should be entitled to hold sovereign rights over a strip of coastal waters (cannon shot rule). The remaining pelagic spaces would lie beyond state jurisdiction, hence the long-lasting dichotomy between territorial sea and high seas. Nonetheless, the aggressive mercantilist policies carried out by European colonial empires and the “jealousy of trade” heavily affected the freedom of the sea and trade, as clearly shown by the Ostend Company affair (1722-1731). From the beginning, the leading maritime powers, Great Britain and the Dutch Republic eagerly advocated the suppression of the Imperial East India Company, which indeed was proving to be a dangerous competitor. In reaction, judges and lawyers such as Charles Philippe de Patin, Patrick Mac Neny and Jean Du Mont defended the right of the Ostend company to navigate and trade towards India and China, recovering the natural law/Grotian idea of mare liberum and arguing based of treaty law interpretation. The paper thus aims at situating the Ostend Company debates in the long-term conceptualisation and evolution of the law of the sea (focusing on the arguments developed by the authors who defended the company’s right to exist and operate freely), in the belief that they perfectly showcase the persisting tensions in such evolution. The paper addresses the issue from a contextual legal historical perspective, positioning legal sources into the wider historical context of the early eighteenth century.