New paper on SSRN: "Delenda Est Haec Carthago ! The Ostend Company as a Problem of European Great Power Politics (1722-1727)" (Revue Belge de Philologie et d'Histoire/Belgisch Tijdschrift voor Filologie en Geschiedenis, CXIII (2015), No. 2, 397-437; DOI 10.3406/rbph.2015.8840)

With the kind permission of the journal, I posted a paper on the Social Science Research Network, forthcoming as an article in the Revue Belge de Philologie et d'Histoire/Belgisch Tijdschrift voor Nieuwste Geschiedenis. The text discusses the legal debate between the Dutch Republic and Emperor Charles VI of the Holy Roman Empire on the right of the inhabitants of the Austrian Netherlands to participate in trade on the High Seas. The Ostend Company, a joint stock corporation, had been recognised by the Emperor in 1722. Its tea imports from the East Indies drove down prices and harmed the market share of Dutch and British competitors. The Maritime Powers protested against this intrusion and obtained the suspension and then suppression of the Company, first at the Parisian Preliminaries (31 May 1727), and finally at the Treaty of Vienna (March 1731). Traditionally, historiography sees this as a question of power politics, a symbol of the sorry fate of present-day Belgium as an object of Great Power Politics. The Ostend Company was not a priority for Emperor Charles VI, a far-away monarch ruling from Vienna, who preferred international recognition of his Pragmatic Sanction. Lawyers, on the other hand, tend either to reproduce the victors' position and ignore arguments brought forward by the 'Belgians', or fail to perceive the impact of multilateral diplomacy on practical legal reasoning. My contribution challenges these idées reçues from the angle of contextual legal history. Law is not a pure autoreferential textual science. Studying big names is often a synonym for what is in fact a disguised study of political thought or legal philosophy, and not of international law. Conversely, history should not ignore the systematic thinking common to European lawyers, as an essential element of political culture and communication, as well as a way to structure life in society.

First, big names as Jean du Mont de Carels-kroon (compiler of a treaty collection of major importance, the Corps Universel Diplomatique du Droit des Gens) and Jean Barbeyrac (translator of Pufendorf and Grotius, professor of public law in Groningen) showed an impressive display of legal reasoning, using a broad array of sources of the Ancien Régime's pluralist and multi-layered normative order. If their writings are explored in detail, the debate comes across as much more nuanced than usually projected. The traditional Dutch argument stated that the High Seas were fundamentally common to mankind. No sovereign could claim a property right or a right of exclusion, since the High Seas are essential to commercial intercourse between all nations on earth. Hugo Grotius had proclaimed this principle in the early 17th century, drawn from the Digest, against Spanish, Portuguese or British claims to exclusive dominium on the High Seas. Yet, in order to counter an unwelcome commercial competitor, the lawyers of the Dutch East India Company argued a century later against the Ostend Company that every state could dispose of this right by treaty (mare liberum, pactis clausum).  In other words, what had seemed peremptory for Grotius, as an essential right for any sovereign, had now become a mere faculty in the eyes of his countrymen. The latter opposition is traditionally taken as the essence of the discussion. From the Dutch side, it was argued that Philip IV had forever abandoned a right guaranteed in peremptory natural law, creating a permanent limitation on the Southern Netherlands, irrespective of the identity of their future sovereign. The Imperial side, on the other had, argued that such an exception was contrary to the essence of the right of navigation on the High Seas: even if it had not been exercised, the right was inalienable.

However, even if we accept that a state can renounce its right to navigate on the High Seas, the 1725 Treaty of Commerce between Philip V of Spain and Charles VI utterly destroyed the Dutch argument: if a state can auto-limit its access to the High Seas by a convention, the reverse should be true as well: mare liberum, pactis apertum. The Treaty of Munster (1648) was seen by the Dutch Republic as an auto-limitation imposed by Philip IV of Spain on the inhabitants of the Southern Netherlands, transmitted to his successor at the end of the War of the Spanish Succession.  In 1725, Charles VI, as Philip IV's successor in Flanders, Brabant, Mechelen, Hainault... obtained exactly the opposite from Philip IV's successor as King of Castille: access to the Spanish colonies. Whoever has the competence to impose restrictions, can lift them again (ejus est solvere, cujus est ligare). In other words, the discussion on the modalities of the peremptory law of nature-norm 'Mare Liberum' had become irrelevant. Even if a 'renunciation' of the right to navigate on the High Seas were to be admitted, this renunciation had just been cancelled out by a new treaty ! Charles VI dropped the Ostend Company at the Parisian Peace Preliminaries of 31 May 1727 (confirmed in 1731), but had a strong case during his (albeit short-lived) alliance with the King of Spain.

Secondly, lawyers often see the multilateral diplomatic process leading to the Ostend Company's elimination as a game of tough and crude politics of interest, aloof from any normative arguments or systematic reasoning. This is in part due to the relative research gap concerning diplomatic practice in legal history. The suppression of the Ostend Company is not a product of short-term politics, but is a logical consequence of the Franco-British dominated legal order imposed at the end of the War of the Spanish Succession. The treaties of Utrecht (April 1713), Rastatt (March 1714) and Baden (September 1714) constituted the core of international order and the constant point of reference in further negotiations on international problems. Subsequent treaties of guarantee (Franco-British Treaty, 1716; Triple Alliance, 1717; Quadruple Alliance, 1718) installed a normative hierarchy. Between treaty law and fundamental norms (in the case of Philip V of Spain's renunciation to the French throne, or in that of the successions in the Italian Imperial fiefs of Parma, Piacenza and Tuscany), but also within the normative order of treaty law itself. Utrecht, Rastatt and Baden became the touchstone for any territorial or political claim. The 1725 Treaty of Commerce concluded between Charles VI and Philip V was stillborn, in the sense that it accompanied a monstrous alliance. The Empire of Charles V, uniting the Habsburg possessions in Italy, Belgium, Spain, the Holy Roman Empire and the Indies, was virtually resuscitated through a secret marriage clause in the main treaty of alliance. The spectre of Universal Monarchy haunted European diplomacy again ! As a logical annex to the political provisions of the alliance, the treaty of commerce had no realistic chance of survival. The Ostend Company was not a bilateral affair in essence. Calculations in broader European politics were not the product of 'selfishness' or 'crude calculation', but were structured according to legal thinking. Diplomats and bureaucrats had received a schooling in either classical languages, Roman law or German public law, and structured the horizontal interactions between sovereigns according to common normative understandings. If the Pragmatic Sanction had more priority than the Ostend Company, this was not a consequence of Charles VI's arbitrary personal taste, but an application of the international system of guarantee for national succession orders which had already been used by France and Great Britain, conformable to the Utrecht logic.

Text on SSRN (click here, e-journal Conflicts Studies: International Relations Theory; e-journal Legal History), or in the second issue of next year's RBPH-BTFG.

Update (25 February 2016): This article has now been published. Reference: "Delenda est haec Carthago: The Ostend Company As Problem Of European Great Power Politics (1722-1727)". Revue Belge de Philologie et d'Histoire/Belgisch Tijdschrift voor Filologie en Geschiedenis XCLIII (2015), No. 2, pp. 397-437 (ISSN 0035-0818).

Update 2: this text is now online in open access on Persée. DOI: 10.3406/rbph.2015.8840.