Content area
Full text
Structured Abstract
Article Type: Research Paper
Purpose-This paper presents an alternative appreciation of the Grotian law of the sea, challenging the conventional association of his ideas solely with the "freedom of the seas." The conventional perspective hinges on Grotius' emphasis on long-term societal expediency as a pivotal factor in shaping the law of the sea, such as considering whether it is expedient for coastal states to exert jurisdiction over territorial waters. This reassessment aims to evaluate the compatibility of the contemporary law of the sea with the Grotian tradition.
Design, Methodology, Approach-This paper relies on bibliographic sources, particularly primary ones, such as Grotius' original works. While predominantly rooted in legal dogmatics and theory, this methodology draws inspiration from contextualist historiography to enhance comprehension of Grotius' law of the sea.
Findings-By disassociating him from the exclusive identification with the freedom of the seas, this alternative reading of Grotius suggests that the contemporary law of the sea, in pursuit of societal expediency and more democratically, aligns with Grotian principles as far as the current institutional and normative development of the international legal order permits.
Practical Implications-Given Grotius' substantial influence on scholarly perceptions of the law of the sea, the proposed reassessment may impact how relevant epistemic communities conceptualize the contemporary law of the sea. It is suggested that the Grotian perspective elaborated here is the discipline's historical and ontological origin. Therefore, the pursuit of societal expediency has always been, and still is, an axiomatic element essential to the law of the sea praxis.
Originality, Value-Recognizing the Grotian law of the sea's foundation in expediency is not a novel contribution. This paper distinguishes itself by detaching Grotius from the mainstream free seas thesis. The originality lies in asserting that despite increasing limitations on this freedom, or precisely because of them, the contemporary law of the sea remains inherently Grotian as it responds to a changing factual setting and is based on an institutionally and normatively evolved international legal order and arguably does this toward long-term societal expediency.
Keywords: BBNJ Agreement, Grotius, History of the Law of the Sea, Law of the Sea, UNCLOS
I. Introduction
This paper challenges the usual association of the Grotian law of the sea with the freedom of the seas. I suggest that,...