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22 - The Freedom of the Seas

from Part IV - Grotius as a Legal Scholar

Published online by Cambridge University Press:  03 September 2021

Randall Lesaffer
Affiliation:
Katholieke Universiteit Leuven, Belgium
Janne E. Nijman
Affiliation:
Universiteit van Amsterdam
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Summary

The laws of war, as expounded by Grotius, resulted from an interplay of natural law and the voluntary law (or law of nations), which was a customary law based on state practice.Important ways in which the voluntary law departed from natural law were in according equal rights to belligerents in war, without regard to the justices of the respective causes.The predominant principle governing the conduct of war was necessity, which had both a permissive and a restrictive character.Grotius was a firm supporter of moderation in the exercise of the rights of belligerency.This worked particularly to the benefit of civilians and prisoners of war.He insisted that principles of good faith must operate in war, so that perfidious acts were prohibited, though ordinary ruses of war were allowed.The voluntary law, to Grotius, allowed the unlimited taking of property belonging to enemy nationals.Grotius also gave careful attention to modern concerns such as targeted killing.An important contributions was to lay the groundwork for the law of neutrality, setting out rules on the treatment of neutral-owned property in war and on the treatment of enemy-owned property in the custody of neutrals.

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Publisher: Cambridge University Press
Print publication year: 2021

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References

Further Reading

Diesselhorst, M., ‘Hugo Grotius and the freedom of the seas’, Grotiana N.S. 3 (1983) 1126.Google Scholar
Oudendijk, J.K., The Status and Extent of Adjacent Waters: A Historical Orientation (London, 1970).Google Scholar
Pinto, M.W.C., ‘The new law of the sea and the Grotian heritage’, in Asser Instituut (ed.), International Law and the Grotian Heritage (The Hague, 1985), 5493.Google Scholar
Simmonds, K.R., ‘Grotius and the law of the sea: a reassessment’, in Dufour, A., Haggenmacher, P. and Toman, J. (eds.), Grotius et l’ordre juridique international (Lausanne, 1985), 43–8.Google Scholar
Thornton, H., ‘John Selden’s response to Hugo Grotius: The argument for closed seas’, International Journal of Maritime History 18 (2006) 105–27.CrossRefGoogle Scholar

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