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Appropriating Nature: Commerce, Property, and the Commodification of Nature in the Law of Nations

Published online by Cambridge University Press:  24 July 2014

ILEANA PORRAS
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Abstract

This article explores the structural link between international law's long-standing doctrinal commitment to commerce and its inability to act decisively on behalf of the environment. One of the fundamental rights the early authors of jus gentium discovered was the right to engage in commerce. Francisco de Vitoria, Alberico Gentili, and Hugo Grotius each drew on and applied a providentialist theory of commerce. The doctrine held that Providence distributed scarcity and plenty across the earth so that peoples could not be self-sufficient, but would need to go in search of one another in order to acquire what they lacked. Commerce imagined in its pure form of reciprocal, mutually beneficial exchange would be the means to bring separated mankind to friendship. The embrace of the providentialist doctrine by these early exponents of the law of nations, carried forward by Emer de Vattel, set the stage for international law's longstanding commitment to international commerce, viewed (despite all the distortions) as a virtuous activity that tends to the common good. The doctrine's additional legacy was the installation of a view of nature as commodity. The providentialist doctrine of commerce, adopted by the early authors of international law, remains embedded in the structure of international law and cannot easily be dislodged. Until this doctrine is dislodged, however, international law will continue to be hobbled in its ability to address the urgent task of protecting the natural environment.

Keywords

commercecommon goodenvironmentnature as commodityProvidence
Type
INTERNATIONAL LEGAL THEORY: Symposium: Locating Nature
Information
Leiden Journal of International Law , Volume 27 , Issue 3 , September 2014 , pp. 641 - 660
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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References

1 Despite expressed concerns that the rate of growth is ‘sluggish’, the volume of trade continues to grow. See WTO PRESS/688, 10 April 2013. International seaborne trade volumes in 2012 increased by 4.3 per cent, reaching 9.2 billion tons for the first time ever. See UNCTAD Review of Maritime Transport, UN Doc. UNCTAD/RMT/2013.

2 Information Note: Facts and Figures on Commodities and Commodities Trade, UN Doc. UNCTAD/Press/IN/2013/2.

3 Ibid.

4 Simply stated, according to this doctrine, international commerce was desired by God (Providence) as a means of bringing separated humanity back into friendship. The classic elements attributed to the providential design included a judicious distribution of different resources and lacks across the nations, so that the peoples would need each other and duly go in search of one another in order to offset their lack. Under this view, the oceans, which seemed to separate the nations, were re-imagined as highways that would bring the peoples together in the reciprocal benefaction of exchange. See J. Viner, The Role of Divine Providence in the Social Order: An Essay in Intellectual History (1972), 32 et seq.

5 These three are representative figures in the evolving jus gentium tradition. Moreover, their diversity in terms of nationality and religious affiliation (Vitoria was a Spanish Dominican theologian, Gentili, an Italian Protestant exile in England, and Grotius, a Dutch Protestant) is important to this project, because it supports the claim that the attitudes to nature and commerce that I discern in their work on jus gentium, and in particular their reliance on a providentialist theory of international commerce, cannot simply be ascribed to a narrow national or doctrinal commitment. Certainly, their adoption of the providentialist doctrine of commerce served to legitimize the ongoing European maritime expansion. But what is interesting here is not just the objective pursued, but the way in which the doctrine became embedded in the more general project of articulating a basis for a universally applicable law of nations, comprised both of public law and private law.

6 The concept of imago dei, found in Genesis, was the starting point of all Christian anthropology.

7 For a useful discussion of the various early Christian debates regarding jus naturale and addressing the question of whether it amounted to a theory of rights, see R. Tuck, Natural Rights Theories: Their Origin and Development (1979), 5–31.

8 For a detailed account of the dialogue that Vitoria engaged with Aquinas on the subject of dominium, through which he developed a theory of a universally applicable individual right to property, see M. Koskenniemi, ‘Colonization of the “Indies”. The Origin of International Law’, in La Idea de América en el Pensamiento Ius Internacionalista del Siglo XXI, (2010), 43–63 (Origin of International Law).

9 Genesis 1:28.

10 A mystical undercurrent, which traversed the Judeo-Christian tradition, held that the created world also gave glory to God, but this perspective did not fundamentally challenge the dominant view.

11 The term Anthropocene is used to describe a new geological epoch, highlighting the scale of the impact of human activity on the natural world since the industrial revolution, an impact that has effected geologic-scale change. See W. Steffen et al., ‘A Global Perspective on the Anthropocene’, (2011) 334 (Oct.) Science, 34–5.

12 Vitoria's work has been described as a response to the Spanish encounter with the New World. See, e.g., A. Anghie, Imperialism, Sovereignty and the Making of International Law. However, it is worth remembering that Vitoria's intellectual response came almost half a century after first contact. By the time of Vitoria's Salamanca lectures (1537–9), Spanish conquistadors and encomenderos had devastated Hispaniola and much of the Caribbean, exhausting gold deposits and in the process pillaging and enslaving the local population; Hernán Cortes had defeated the Aztecs at Tenochtitlan in 1521; and Francisco Pizarro had executed Atahualpa Inca in 1533. By 1537, the consolidation of Spanish rule over much of Central and South America was well under way. Furthermore, by this time, disease and large-scale exploitation had contributed to an unprecedented decline in population, leading to the fateful decision to import African slave labour to the New World.

13 I. Porras, ‘Constructing International Law in the East Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius’ De Iure Praedae — The Law of Prize and Booty, or “On How to Distinguish Merchants from Pirates”’, (2006) 31 Brooklyn J. Int’l L. 741, 756 et seq. (Constructing International Law).

14 Vitoria, F., ‘On the American Indians’ in Pagden, A. and Lawrance, J. (eds.), Francisco de Vitoria, Political Writings (1991) 231–92CrossRefGoogle Scholar, (De Indis).

15 Ibid., 239 et seq.

16 All three references to rivers occur in the section in which Vitoria establishes the right of the Spaniards to travel freely and to engage in commerce, see De Indis supra note 14 at 279–80.

17 See De Indis, supra note 14, at 279.

18 For an account of European overseas expansion beginning in the fifteenth century, see E. B. Barbier, Scarcity and Frontiers: How Economies Have Developed through Natural Resource Exploitation (2011), 225–367. For an overview of the period of maritime expansion from the British perspective, see K. R. Andrews, Trade, Plunder and Settlement: Maritime Enterprise and the Genesis of the British Empire 1480–1630 (1984) (Trade, Plunder and Settlement).

19 Kennedy, D., ‘Primitive Legal Scholarship’, (1986) 27 Harv. Int’l L.J. 1Google Scholar.

20 See De Indis, supra note 14, at 277. Vitoria also refers to these as ‘legitimate and relevant titles’, Ibid.

21 See De Indis, supra note 14, at 278.

22 Ibid.

23 Ibid., at 279.

24 Ibid., at 279 (emphasis added).

25 Ibid., at 280.

26 For a discussion of Vitoria's relatively relaxed attitude to the ethical questions raised by the new commercial practices that were evolving in this period, see M. Koskenniemi, ‘International Law and the Emergence of Mercantile Capitalism: Grotius to Smith’, in The Roots of International Law/Les Fondements du Droit International (2013), 12–16.

27 See De Indis, supra note 14, at 280.

28 Ibid.

29 Ibid., at 291.

30 A. Gentili, De Jure Belli Libri Tres (Reproduction of the 1612 edition, with a translation by John C. Rolfe (1933)) (1598) (DIB).

31 Raleigh's disastrous Roanoake settlement venture was launched just a few years prior to publication of DIB and various publicists were actively encouraging further English endeavours in that direction. See Trade, Plunder and Settlement, supra note 18, at 220 et seq.

32 See DIB, supra note 30, at 9.

33 The subject of commerce is addressed in Book 1, chap. XIX, on the ‘natural causes’ for war. See DIB, supra note 30.

34 Ibid. (emphasis added).

35 Ibid., Book 1, chap. XIX, supra note 30, at 89 (emphasis added).

36 Ibid., at 88. But the practical Gentili makes it clear that only the absolute prohibition of commerce can be deemed an injury and that placing restrictions on commerce is a prerogative of sovereigns. Later in the text he reiterates that English restrictions on the rights of foreign traders who seek to supply the Spanish enemy were perfectly reasonable. See DIB Book 1. chap. XXI, supra note 30, at 101–3.

37 H. Grotius, Commentary on the Law of Prize and Booty (M. J. van Ittersum ed. 2006) (Grotius, DIP).

38 For details of the background circumstances of Grotius’ De Jure Praedae see Porras, ‘Constructing International Law’, supra note 13; see also van Ittersum, M. J., ‘Hugo Grotius in Context: Van Heemskerck's Capture of the Santa Catarina and its justification in De Iure Praedae (1604–1606)’, (2003) 31 Asian Journal of Social Science 511CrossRefGoogle Scholar.

39 See Porras, supra note 13, at 756.

40 H. Grotius, The Free Sea (D. Armitage ed., 2004) (Grotius, Free Sea).

41 H. Grotius, The Rights of War and Peace (R. Tuck ed., 2005) (Grotius, War and Peace).

42 For the difficulty in pinpointing Grotius’ actual source of authority for a right to engage in commerce see Porras, supra note 13, at 765–70.

43 Grotius, DIP chap. XII, supra note 37, at 182 (emphasis added).

44 Ibid.

45 ‘We will lay this certain rule of the law of nations (which they call primary) as the foundation . . . that it is lawful for any nation to go to any other to trade with it. God himself speaketh this in nature, seeing he will not have all those things, whereof the life of man standeth in need, to be sufficiently ministered in nature in all places . . . To what end are these things but that he would maintain human friendship by their mutual wants and plenty, lest everyone thinking themselves sufficient for themselves for this only thing should be made insociable.’ Grotius, Free Sea, supra note 40, at 10 and ‘This Seneca thinketh the greatest benefit of nature, that even by the wind she hath so divided all her goods into countries that mortal men must needs traffic among themselves.’ Ibid., at 11.

46 Grotius, DIP Chap. XII, supra note 37, at 216 (emphasis added).

47 Grotius, DIP, supra note 37, at 182 (emphasis added).

48 Grotius’ account of the origin of property in Rights of War and Peace differs in some important respects from his account in DIP. I reserve to another day a more detailed reading of these interesting narratives and their underlying assumptions.

49 Grotius, War and Peace, Vol. II, supra note 41, at 420.

50 Ibid.

51 Ibid.

52 Commerce is one of a series of retained rights described by Grotius that follow from the original commonality of the world. Textually, the right to commerce follows the right of necessity, the right to innocent profit, and the right of free passage; and precedes the right to purchase. See Grotius, War and Peace, Book 2, chap. II, supra note 41, at 433 et seq.

53 Grotius, War and Peace, Book 2, chap. II, supra note 41, at 444 (emphasis added).

54 E. de Vattel, The Law of Nations (B. Kapossy and R. Whitmore eds., 2008) (Vattel, Law of Nations).

55 For a thorough and fascinating analysis of Vattel's work in the context of the history of international legal doctrine see E. Jouannet, Emer de Vattel et L’Émergence Doctrinale du Droit Internationale Classique (1988).

56 Vattel, Law of Nations §83, supra note 54, at 131 (emphasis added).

57 Ibid., §85, supra note 54, at 131 (emphasis added).

58 See discussion infra at note xx.

59 Vattel, Law of Nations §88, supra note 54, at 132 (emphasis added).

60 Ibid., at 133 (emphasis added).

61 Ibid., supra note 54, at 133.

62 The distinction between perfect and imperfect external obligations and their corresponding rights is set out in Vattel, Law of Nations, Preliminaries §17, supra note 54, at 74–5.

63 Vattel, Law of Nations §93, supra note 54, at 135.

64 This principle is established in the Preliminaries, which relate to the obligations in both Books I and II, see ibid., at 71, 72.

65 He had already stated as much in Book I in the context of internal obligations: ‘nations are obliged to trade together for the common benefit of the human race, because mankind stands in need of each other's assistance’, see Ibid., at 135.

66 Ibid., at 273–4 (emphasis added).

67 The term translated here as ‘intercourse’ is ‘commerce’ in the original French, a reminder that the etymology of commerce once embraced a broader range of human relationships than the more limited idea of commercial exchange now associated with it in English.

68 Vattel, Law of Nations, Preliminaries §10, supra note 54, at 71.

69 See, generally, Koskenniemi, supra note 8.